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Office of the Comptroller of the Currency, Treasury (OCC); Board of Governors of the Federal Reserve System (Board); Federal Deposit Insurance Corporation (FDIC); and Office of Thrift Supervision, Treasury (OTS).
Final rule; correction.
On April 9, 2002, the OCC, Board, FDIC, and OTS (collectively, the Agencies) published a final rule in the
The corrections made in this document are effective July 1, 2002 (
This document clarifies the effective date of the rule and corrects errors in the joint final rule published in the
In the final rule FR Doc. 02-8142, published on April 9, 2002, (67 FR 16971) make the following corrections:
1. In the
2. In the
3. On page 16978, in the first column, correct the third sentence of Section III.C.2.d. by removing the phrase “collateralized claims” and substituting the phrase “a collateralized claim” and by removing the phrase “, or guaranteed by,” after the phrase “collateralized claims on”.
4. On page 16978, at the top of the third column, remove paragraph 4.
5. On page 16978, in the third column, correct amendatory instruction 2.b. by removing “Redesignate footnotes 27 through 47 as footnotes 30 through 50” and substituting “Redesignate footnotes 31 through 47 as footnotes 34 through 50.”
6. On page 16978, in the third column, correct amendatory instruction 2.c. by removing “Add new footnotes 27 through 29” and substituting “Add new footnotes 31 through 33.”
7. On page 16979, in the first column, under Category 2—20 Percent Risk Weight, remove the references to footnotes 27 and 28 in the rule text and footnotes and replace them with references to footnotes 31 and 32, respectively.
8. On page 16979, in the second column, under Category 2—20 Percent Risk Weight, remove the references to footnote 29 in the rule text and footnotes and replace them with references to footnote 33.
By order of the Board of Directors.
By the Office of Thrift Supervision
Office of the Comptroller of the Currency, Treasury.
Final rule.
The Office of the Comptroller of the Currency (OCC) is amending its regulations in order to facilitate national banks' ability to conduct business using electronic technologies, consistent with safety and soundness. This final rule groups together new and revised regulations addressing: national banks' exercise of their Federally authorized powers through electronic means; the location, for purposes of the Federal banking laws, of a national bank that engages in activities through electronic means; and the disclosures required when a national bank provides its customers with access to other service providers through hyperlinks in the bank's website or other shared electronic “space.”
Section 7.5010 shall take effect on July 1, 2002. All other sections of this final rule shall take effect on June 17, 2002.
Heidi M. Thomas, Special Counsel, Legislative and Regulatory Activities, (202) 874-5090; James Gillespie, Assistant Chief Counsel, (202) 874-5200; or Clifford Wilke, Director, Bank Technology, (202) 874-5920.
On July 2, 2001, the OCC published a notice of proposed rulemaking (NPRM) in the
Our proposal was the result of a focused review of our regulations with the goal of revising them in ways that would facilitate national banks' use of technology, consistent with safety and soundness. We initiated this review by publishing an advance notice of proposed rulemaking (ANPR).
The OCC received 22 comment letters on the proposal.
Some commenters, however, suggested modifications or articulated concerns with certain aspects of this proposal. In light of these comments, we have modified certain provisions of the proposed rule. The most significant comments, and our responses, are discussed in the following section-by-section analysis. As in the preamble to the proposal, this section-by-section description is divided into three categories: national bank powers; “location” with respect to the conduct of electronic activities; and, safety and soundness requirements for shared electronic “space.”
As we described in the proposal, the OCC has long permitted a national bank to act as a finder to bring together buyers and sellers of financial and non-financial products and services. Under our current rules, a national bank acting as a finder may identify potential parties, make inquiries as to interest, introduce or arrange meetings of interested parties, and otherwise bring parties together for a transaction that the parties themselves negotiate and consummate.
Section 7.1002 of the OCC's rules addresses national banks' finder authority. The proposal sought comment on several changes to that provision. First, the proposal stated that it is part of the business of banking for a national bank to engage in finder activities, codifying the position the OCC has taken in various interpretive letters.
Second, the proposal added a number of specific examples illustrating the range of finder activities the OCC has authorized to date. The preamble to the proposal made clear that this list was illustrative and not exclusive, and that the OCC may find new activities to be authorized under the finder authority that are not specifically enumerated in the regulation.
Finally, the proposed rule modified the statement in the current rule that the authority to act as a finder does not enable a national bank to engage in activities that would characterize the bank as a broker under Federal law that are not otherwise permissible for national banks.
We received a number of comments on proposed § 7.1002. Some of these comments urged the OCC to include additional activities in the illustrative list of those permissible for a national bank acting as finder. For example, one commenter requested that the OCC authorize national banks, acting as finders, to participate in negotiations, negotiate on behalf of parties to a transaction, and bind parties to a transaction so long as the bank itself is not a party and obligated as a principal. Another commenter requested that the OCC endorse a broad role of banks as electronic agents.
After carefully reviewing these comments, we have declined to make changes to the extent suggested.
We have, however, modified the proposal to clarify certain other aspects of the finder authority that do not cause a national bank to be a participant in the transaction. Thus, the final rule provides that a national bank may act as an intermediary between interested parties and establish rules of general applicability governing the use and operation of the finder service.
In response to a commenter's suggestion, we have also changed the reference “buyers and sellers” in § 7.1002 to “interested parties to a transaction” so that the rule recognizes that national banks can bring together different types of parties to a transaction in addition to buyers and sellers. This commenter noted in particular that in the Internet environment, there may be many parties to a transaction beyond the buyer and seller, such as service providers, consultants, software developers, and regulatory authorities. We agree with this observation. We also note that the definition of buyers and sellers includes analogous parties, such as lessors and lessees. In addition, as the scope of permissible finder activities is not dependent on the nature of goods or services sold, national banks can act as finder with respect to non-financial products and services.
The preamble to the proposed rule stated that the examples of permissible national bank finder activities were illustrative and not exclusive, and that the OCC may find new activities to be authorized under the finder authority that are not included in the examples. A number of commenters requested that we amend the regulatory text itself to state that these examples are not exhaustive. We agree that making this statement in the text of the regulation itself will remove any ambiguity on this point. Therefore, the final rule includes language indicating that permissible finder activities are not limited to those listed as examples in the regulation.
The proposal created a new Subpart E of part 7, so that regulations pertaining to electronic activities would appear in one place. Proposed § 7.5000 described the purpose of Subpart E, which addresses national banks' use of electronic technology to deliver products and services, consistent with safety and soundness. To more accurately reflect the content of this section, we have changed the title of § 7.5000 in the final rule from “Scope” to “Purpose of subpart E.”
The majority of commenters supported the creation of a new, separate subpart for electronic banking-related provisions. Although one commenter suggested a regrouping of the provisions in new subpart E, we believe that the organization of the subpart as proposed presents the subject
In response to new technologies and evolving financial markets, national banks are continually developing new electronically-based activities and products. Proposed § 7.5001 was designed to assist banks that are contemplating these new electronic activities and products by identifying the factors the OCC uses to determine whether such an activity or product is part of, or incidental to, the business of banking, pursuant to 12 U.S.C. 24(Seventh).
In general, commenters supported the approach taken by this section. However, a few commenters noted specific issues with the section as drafted. These issues are discussed below.
Proposed § 7.5001(a) also stated that State law applies to a national bank's conduct of electronic activities to the extent such law would apply if the activity were conducted by the bank through traditional means. A few commenters suggested modifications to this statement. However, because § 7.5002 of the proposed rule contains the same applicability of State law provision, we have deleted this provision in § 7.5001 as redundant and unnecessary. These comments, therefore, are described in the discussion of § 7.5002, below.
The first factor is whether the electronic activity is functionally equivalent to, or a logical outgrowth of, a recognized banking activity. As indicated in the preamble to the proposed rule, this factor is based on judicial precedents approving activities that traditionally have been performed by banks, that are functionally similar to recognized banking activities, or that represent advances in recognized banking practices.
The second factor in proposed § 7.5001(b) is whether the proposed activity strengthens the bank by benefiting its customers or its business. Courts have long recognized that national banks' ability to serve the needs of their customers by offering appropriate products and services is crucial to their capability to compete successfully. Courts have also approved many activities on the basis that they benefit a bank's customers or the bank's business itself.
The third factor in proposed § 7.5001(b) is whether the activity presents the types of risk that banks are experienced in managing. One commenter requested that the OCC change this factor instead to whether the activity “involves risk that can be sufficiently assessed and managed by the bank.” This suggested modification appears substantially identical to the proposal in practical effect. Since we have utilized the proposed factor—whether the activity presents the types of risks that banks are experienced in managing—in interpretive letters issued prior to this proposal,
Finally, the fourth proposed factor recognized the relevance of State law in the analysis the OCC conducts when it receives requests regarding the permissibility of new electronic activities for national banks. Since the statutory reference to the “business of banking” does not imply that there are two distinct businesses of banking—one for Federally-chartered and another for State-chartered banks—activities that are recognized as permissible for State banks are at least a relevant factor in determining whether an electronic activity is part of the business of banking.
The preamble to the proposed rule stated that a proposed activity does not necessarily have to satisfy all of these four factors in order to be permissible. One or more of these factors may be sufficient, depending on the specific facts and circumstances presented. One commenter requested that, in addition to the preamble, the regulatory text include the statement that an activity does not need to meet all of the listed factors to be permissible. In response,
Finally, we have modified the first sentence of proposed § 7.5001(b) by deleting the phrase “or is otherwise part of the business of banking.” That phrase is unnecessary in light of the statement elsewhere in this subsection that an activity is authorized for national banks as part of the business of banking if the activity is described in section 24 (Seventh).
The first factor is whether the activity facilitates the production or delivery of a bank's products or services, enhances the bank's ability to sell or market its products or services, or improves the effectiveness or efficiency of the bank's operations in light of risks presented, innovations, strategies, techniques, and new technologies for producing financial products and services. In applying this factor, the OCC has determined that the provision of certain electronic products and services is permissible, as incidental to the business of banking, when needed to package successfully or promote other banking services.
We noted in the preamble to the proposed rule that the authority of banks to deliver and sell products and services or improve the effectiveness of their operations must be viewed in light of innovations, strategies, techniques and new technologies for marketing financial products and services. These grants of power must be given a broad and flexible interpretation to allow national banks to utilize modern methods and meet modern needs.
The second factor listed in proposed § 7.5001(c) is whether the activity enables the bank to profitably use capacity acquired for its banking operations or otherwise avoid economic waste or loss. For example, it is well settled that a nonbanking activity can be incidental when it enables a bank to realize gain or avoid loss from activities that are part of, or necessary to, its banking business. Federal statutes and case law also recognize national banks' need to optimize the value of bank property by authorizing banks to sell excess space or capacity in that property.
We received no specific comments on these factors and have therefore retained them both in the final rule. We have, however, modified the second factor by removing the word “profitably” to conform this factor to the excess capacity doctrine set forth in § 7.5004.
As with determinations regarding whether an activity is part of the business of banking, specific facts may implicate one or both of these factors, and the activity need not satisfy each factor to be permissible as incidental to that business. At the request of a commenter, the OCC has added a clarification of this point, in § 7.5001(d)(2) of the final rule.
Two commenters discussed the effect of this new § 7.5001 on the application process the OCC uses to determine whether national banks and their operating subsidiaries may engage in new activities, set forth in 12 CFR part 5. One commenter requested more specificity on the use of the factors relevant to determining whether an activity is incidental to banking and asked that the OCC clarify whether it expects banks to include these factors in applications to offer new electronic services. This commenter also asked whether the OCC intends to alter or streamline this application process in light of the factors listed in § 7.5001.
We do not believe that substantive changes to the application process in part 5 are necessary at this time based on this codification of the factors the OCC examines when determining whether an activity is authorized pursuant to 12 U.S.C. 24(Seventh). These factors are derived from OCC opinion letters, which explain them in sufficient detail that additional guidance is not needed in the rule. A bank that wishes us to consider whether a proposed activity is permissible pursuant to 12 U.S.C. 24(Seventh) should describe in its filing how its proposed activity meets one or more of these factors. If it subsequently appears that technical changes to the application
Another commenter suggested that the OCC establish an “optional, expedited notice procedure for new activities as a way of enabling banks to bring products to market quickly within the umbrella of OCC deference.” We believe, however, that the OCC's current processes are sufficiently flexible to allow national banks to offer new electronic products and services expeditiously, consistent with safety and soundness considerations. In general, national banks are not required to notify or obtain OCC approval to engage in permissible activities within the bank. In addition, national banks may already offer many permissible electronic products or services through an operating or financial subsidiary without filing a notice or application with the OCC. (For new activities to be performed in an operating or financial subsidiary, the after-the-fact notice or application provisions of 12 CFR part 5 apply.) As indicated in the discussion above, the factors set forth in § 7.5001 will assist banks in their determination as to whether a new activity is permissible. A bank that is uncertain about the permissibility of a new activity may request an interpretive opinion from the OCC.
The OCC's rules currently provide that a national bank may perform, provide, or deliver through electronic means and facilities any function, product, or service that it is otherwise authorized to perform, provide or deliver.
We have relied on this transparency doctrine to approve a number of technology-based activities, such as web site hosting and the operation of a “virtual mall,” that are otherwise permissible under a national bank's finder authority. Similarly, we have approved electronic bill presentment activities because billing and collecting services are permissible for national banks.
The proposal moved the transparency rule to § 7.5002 of new subpart E and expanded it to include examples of activities the OCC has found to be permissible. These changes were proposed in order to provide clearer guidance to national banks that wish to engage in new electronic activities.
One commenter requested that we clarify that these examples in § 7.5001 are not exclusive, and that we would consider the authorization of new activities under the transparency doctrine that may not be illustrated through the examples provided. The commenter's suggestion is consistent with the purpose of the provision, and the final rule clarifies that these examples are illustrative, not exclusive.
Other commenters requested that we expand the list of examples in the text of § 7.5002 to include other specific activities. One suggested that this list include the provision of communications services relating to all aspects of transactions between buyers and sellers. This facilitation of communication between interested parties is an inherent part of a bank's finder activities, and therefore may be conducted electronically.
Other commenters suggested adding a number of specific activities that the OCC has not yet approved as permissible for national banks. We have not adopted these suggestions. Our experience is that decisions about the permissibility of new electronic activities are best made in the context of specific tests and circumstances that enable us to consider the practical and supervisory effects of, as well as the legal basis for, the determination. We will accordingly continue our practice of case-by-case review, followed by codification of key precedents, as appropriate, from time to time. As noted previously, this codification does not serve to limit the activities that may be found to be permissible, and we will continue to review new activities on a case-by-case basis.
Consistent with the principle that it is the substance of an activity—and not its electronic form—that is key to the determination of whether it is permissible, the final rule provides that when a national bank engages in an electronic activity based on the transparency doctrine, the electronic activity will not be exempt from the regulatory requirements and supervisory guidance, including those prescribed by OCC regulations or contained in other OCC issuances, that would apply if the activity were conducted by non-electronic means or facilities. This new provision clarifies that national bank activities will continue to be governed by OCC regulatory requirements and supervisory guidance regardless of whether that activity is conducted electronically or by traditional means.
A few commenters suggested modifications in the provision addressing the applicability of State law that appeared at proposed § 7.5002(b), as well as at proposed § 7.5001(a), both provisions being very similar in substance and in wording. One commenter asked that the OCC expressly preempt State laws that purport to regulate activities conducted by electronic means. Another stated that the OCC should require a national bank to comply only with the laws of the jurisdiction from which its electronic products or services are offered. A third commenter asked that we specifically clarify that other preemption rules in Federal law also apply to the electronic banking activities of national banks, such as the preemption rules set forth in the Electronic Signatures in Global and National Commerce Act (E-Sign).
The final rule contains only one provision on the applicability of State law, now located at § 7.5002(c). This provision has been modified to address certain of the concerns the commenters have raised by clarifying the scope of preemption described in the rule, and to reflect developments in the law pertaining to electronic commerce.
In general, the application of State law to activities conducted by national banks through electronic means presents issues of preemption that are determined under traditional principles of Federal preemption derived from the Supremacy Clause of the United States Constitution
However, when the activity is being conducted by electronic means, and thus is potentially geographically boundless, a consideration unique to the purpose and characteristics of the national bank charter becomes an element of this preemption analysis. Through the national bank charter, Congress established a banking system intended to be nationwide in scope, and authorized the creation of national banks, whose powers were intended to be uniform, as established by Federal law, regardless of where in the nation they conducted their business. As the Supreme Court has said:
National banks are instrumentalities of the federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. It follows that an attempt by a state to define their duties, or control the conduct of their affairs is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation, or impairs the efficiency of these agencies of the federal government to discharge the duties for the performance of which they were created.
This freedom from State control over a national bank's powers protects national banks from conflicting local laws unrelated to the purpose of providing the uniform, nationwide banking system that Congress intended. And, as the Supreme Court also recognized, Congress was concerned not just with the application of certain States' laws to individual national banks, but also with the application of
That legislation [
Thus, in analyzing the potential for State laws to be applicable to activities conducted by national banks via electronic means, it is also necessary to recognize in the preemption analysis that application of a multiplicity of State requirements in itself is an important factor in the analysis. Particularly where an activity is conducted via electronic means and is potentially accessible to a customer without any necessary connection to where the customer is physically located, application of multiple State law standards to that particular activity conflicts with the uniformity of standards under which national banks were designed to operate. The final rule's provision on the applicability of State law accordingly provides that the applicability of State law to a national bank's conduct of its authorized activities through electronic means and facilities is governed by traditional principles of Federal preemption derived from the Supremacy Clause, and that, therefore, a State law would not be applicable to such activities if the State law stands as an obstacle to the achievement of a Federal objective, namely, the ability of national banks to exercise uniformly their Federally authorized powers—in this case, through electronic means or facilities.
The phrase “stands as an obstacle” was used by the Supreme Court in
We noted in the preamble to proposed § 7.5003 that some electronic banking activities that appear novel may actually be merely a collection of interrelated activities, each of which is permissible under well-settled authority. Thus, to clarify national banks' authority to conduct this type of composite activity, we proposed to adopt a new § 7.5003, which provides that an electronic
Commenters supported this proposal because it addresses the reality that electronic products and services rarely fit into one specific category of authority. Thus, we are adopting this rule as proposed.
The proposed rule in § 7.5004 recognized that the OCC has long applied the “excess capacity” doctrine to the technology resources of national banks to enable them to avoid waste and deploy those resources efficiently.
The proposed rule stated that a national bank may acquire or develop excess capacity “in good faith for banking purposes.” In applying this test, the OCC and the courts consistently have reviewed a bank's objective business reasons for obtaining the excess capacity. To clarify the appropriate focus of the excess capacity test, and to avoid creating any misperception that the focus is on the subjective intent or mental state of bank management, the final rule states that a national bank may market and sell electronic capacities “legitimately acquired or developed by the bank for its banking business.” The “legitimate” standard incorporates the requirement that the excess capacity must be acquired in “good faith” for banking purposes.
The final rule also adopts the proposed examples of excess capacity in equipment or facilities of national banks that have been found to have been acquired legitimately for banking purposes. The examples in the final rule are not exclusive, but merely illustrate uses of excess electronic capacity that we have approved. As our approvals to date demonstrate, the determination that a particular acquisition of excess electronic capacity is permissible is fact-specific. Accordingly, we encourage banks with questions regarding appropriate uses of excess electronic capacity to consult with the OCC.
In the preamble to the proposed rule, the OCC asked whether the final rule should codify a doctrine closely related to excess capacity: the so-called “by-product doctrine.” Under this authority, a national bank may sell by-products, such as software, legitimately developed by the bank for or during the performance of its permissible data processing functions. A number of commenters urged the OCC to explicitly codify the by-product doctrine. They noted that as part of their electronic banking products or internal operations, national banks often internally design and create software or other products that may have broader application. The by-product doctrine enables national banks to sell such products into the general market and, thus, gain revenue to offset internal development costs.
We have determined that it would be helpful to recodify the by-product doctrine in the final rule. Until 1984, the OCC's data processing rule specifically recognized the by-product doctrine.
The OCC has permitted a national bank to act as a certification authority
The preamble to the proposed rule requested comments on whether the final rule should also authorize national banks to issue digital certificates that verify attributes beyond mere identity,
Generally, commenters strongly supported extending the certification authority to attributes beyond identity. Commenters said that verification of certificate holder transaction authority and financial capacities are necessary for banks to be able to effectively market electronic banking services. These commenters noted that national banks have long had experience in certifying the financial capacity of their
However, other commenters urged the OCC to consider the risks that may arise when the new certification activities either are combined with or approximate in function the existing authority for independent undertakings.
The final rule provides that national banks may issue digital certificates to verify any attribute for which verification is part of or incidental to the business of banking and lists several types of financial capacity as examples of such attributes. This list is intended to be non-exclusive. We will consider what other attributes might be verified in an electronic certificate on a case-by-case basis so that the potential risks can be better assessed.
We recognize that the extended authority to issue non-identity digital certificates presents supervisory issues. We have existing guidance on digital certificates (OCC Bulletin 99-20), and intend to update that guidance to address issues arising under the extended authority codified in § 7.5005(b). These issues arise in part because the party issuing the certificate is verifying an attribute—such as financial capacity—that can and does change over time.
If a bank were to verify that funds will be available on a certain date in its certificates, the bank would, in effect, be engaging in an electronic independent undertaking. However, the extended certificate authority codified in § 7.5005(b) is distinct from independent undertakings, both analytically and operationally. To facilitate this distinction, the final rule clarifies by examples the types of financial verifications that the OCC intends to authorize in extended certifications. Specifically, the final rule lists examples of permissible financial certifications that involve verification of the following existing facts: (1) Account balance as of a particular date; (2) lines of credit as of a particular date; (3) past performance of customer (like a credit report); and (4) verification of customer relationship as of a particular date. Each of these verifications represents a statement of fact as of a particular current or previous date with respect to the certificate subscriber. Thus, financial certificates do not represent a promise by the certificate authority bank to the relying party that particular funds will be available or advanced for a particular transaction. For this reason, a financial certification is distinguished from an independent undertaking, which is a promise by a bank to make available funds for a particular transaction upon presentation of specified documents. An independent undertaking exposes the issuing bank to credit risk; a properly formulated and limited financial certification does not.
We expect banks issuing financial capacity certificates to take steps appropriate to address the risk that a party receiving a financial certification (the relying party, usually a seller) would assert that the certification is really an implied promise or representation by the issuing bank that funds will be available or advanced to pay for a particular transaction. We expect issuing banks to take appropriate precautions against having their financial certificates construed as implied promises to lend. While other risk controls will be appropriate in particular cases,
If banks take necessary precautions and issue appropriately designed financial certifications, the requirements of § 7.1016 (which are designed predominantly to control credit risk) should not be required as a risk mitigation device. However, if a purported financial capacity certificate did guarantee or promise funds availability, the requirements of § 7.1016 should and will apply. Under the transparency rule in § 7.5002 of the final rule, electronic letters of credit are clearly permissible. However, in contrast to the financial certifications authorized under § 7.5005 of this final rule, electronic letters of credit are subject to § 7.1016 because they are independent undertakings.
Finally, the proposed rule contemplated that verification will be provided as part of a digital certificate,
We agree that there are significant advantages to system-linked certificates. However, such certificates also present very different risks than the certificate-based PKI systems for which the OCC has issued guidance.
Proposed § 7.5006(a) codified OCC interpretations confirming that a national bank may collect, process,
In addition to processing of banking, financial or economic data, national banks, under their authority to conduct activities incidental to the business of banking, may also provide limited amounts of non-financial information processing to their customers to enhance marketability or use of a banking service.
Thus, in the preamble discussing proposed § 7.5006, we requested comment on whether to codify this authority to conduct incidental non-financial data processing and specifically whether to provide that a national bank may generally derive a certain specified percentage of its total annual data processing revenue from processing non-financial data. Anecdotal evidence suggested that national banks attempting to market financial data processing services are frequently confronted with customer demands that the bank also process some non-financial data so that the customer can avoid the inconvenience of having to use two different processors for financial data and for non-financial data. Moreover, banks' competitors in the marketplace are providing these fully integrated data processing services. Thus, we asked for comments and evidence on the extent of this type of customer demand in order to determine whether it is so pervasive as to warrant authorizing the processing of non-financial data in connection with financial data processing in lieu of our current case-by-case approach.
The comments filed in response to this request supported codification of the authority to engage in incidental non-financial data processing. These comments establish that such a rule is warranted to accommodate pervasive realities of the financial data processing marketplace. Accordingly, we have decided to adopt a more flexible approach to non-financial data processing rather than a safe harbor with a specific percentage (
The final rule therefore provides that, in addition to its authority to process banking, financial, and economic data, a national bank may also process additional types of data to the extent convenient or useful to the bank's ability to provide the banking, financial, and economic data processing services. This approach to permissible incidental data processing would be satisfied where providing non-financial data processing is reasonably necessary to conduct the financial data processing services on a competitive basis. The bank's total revenue from providing data processing services under this section must, however, be derived
We believe this approach, which is fully consistent with judicial and OCC precedent,
In addition to the authority to provide data processing under this section, national banks also have other
The proposed rule codified the OCC's longstanding interpretation that national banks may perform for other entities an array of activities called “correspondent services” as part of the business of banking.
This proposal also codified a number of OCC interpretations that approve certain electronic- and technology-related activities as permissible correspondent services for national banks and included these activities in the text of the regulation as examples of electronic activities that banks may offer as correspondent services. These examples included: (1) Providing computer networking packages and related hardware that meet the banking needs of financial institution customers;
Two commenters requested that the OCC add digital certification authority services to these examples of permissible correspondent activities. We agree that it is appropriate to add this activity to § 7.5007 because we have previously approved it in interpretive letters.
Two other commenters expressed concern that, as proposed, § 7.5007 may give the impression that the OCC considers the list of permissible correspondent activities in the regulation to be exhaustive. As indicated above, this list is a codification of existing OCC interpretations and is not intended to be restrictive. To clarify this point, we have amended § 7.5002 to specifically provide that these examples are only illustrative. We will continue to consider, on a case-by-case basis, the authorization of new electronic- and technology-related activities as correspondent services offered by national banks that may not be included in the examples provided in the regulation.
As the OCC noted in the preamble to the proposed rule, the effect of several statutes affecting national banks turns in part on where the bank in question is “located.” In addition, the scope of this term (or closely related statutory terms, such as “situated”)—whether it refers only to the bank's main office, includes branches as well, or means something different—varies from statute to statute.
To remove any ambiguity on the scope of this term, the proposed rule provided that a national bank will not be considered located in a State solely because it physically maintains equipment or facilities that are necessary for the use of electronic technologies, such as a server or automated loan center, in that State, or because the bank's products or services are accessed through electronic means by customers located in the State. This interpretation of “located” is consistent with evolving case authority.
Most of those who commented on this issue supported our proposal. One commenter asked that we amend this provision to state specifically that a product or service provided through electronic means shall be deemed to be offered and delivered from a single location. This suggestion raises broader issues that require additional analysis, which at this time we believe is best undertaken on a case-by-case basis rather than through this rulemaking.
Another commenter requested that we delete the word “solely” from the proposed provision in order to eliminate any inference that the location of a bank's technological equipment or customers may ever be considered in the determination of a bank's “location.” It is not our intent to remove these factors altogether from the determination of where a bank is located since the equipment may be connected to other relevant activities of the bank. Instead, the purpose of this provision is simply to make clear that these factors alone will not determine the bank's location in a State.
Accordingly, the OCC has adopted § 7.5008 as proposed.
Twelve U.S.C. 85 authorizes a national bank to charge interest in accordance with the laws of the State in which it is located. In interpreting section 85, the Supreme Court has held that a national bank is “located” in the State where it has its main office (its home State).
The OCC has chartered several national banks without physical branches that make loans or extend credit exclusively through the Internet. The proposal provided that, for purposes of 12 U.S.C. 85, the main office of a national bank that operates exclusively through the Internet is the office identified by the bank under 12 U.S.C. 22 (Second) or as relocated pursuant to 12 U.S.C. 30 or other appropriate authority.
Many commenters supported this section as proposed. We therefore are adopting this section in the final rule, with one minor technical change. Because the OCC does not always use the term “Internet-only” in its guidance and interpretations, we have removed that term from the title of § 7.5009.
In light of the increased ability of national banks to enter into joint marketing relationships with third-parties through the Internet, we proposed to extend the same general principles as set forth in 12 CFR 7.3001
However, many commenters expressed concern that the proposed rule was excessively prescriptive and would unduly limit industry flexibility in responding to the risks of customer confusion regarding shared electronic space. These commenters suggested that a prescriptive rule was unnecessary at this time in light of the OCC Weblinking Bulletin and that the OCC should delay action on a rule until the agency has had more opportunity to evaluate the effectiveness and impact of the Bulletin.
We have decided to adopt a shared electronic space rule, but with significant changes to the proposed rule that are responsive to comments received. In our view, a general rule on shared electronic space is needed to address broader forms of shared electronic space that are becoming increasingly prevalent, but are not covered by the OCC Weblinking Bulletin. These forms include shared web sites and bank web pages that are embedded in third-party sites. The final rule on electronic shared space will provide guidance to the industry, promote greater awareness of relevant issues, and facilitate examiner efforts to supervise this activity.
However, we have decided not to promulgate at the present time the more specific portions of the proposed rule that would have required a national bank with shared electronic space to make specific disclosures of its limited role with respect to third-party products and to advise that the bank does not provide, endorse, or guarantee any of the products or services available through the shared electronic space. In light of concerns expressed by many commenters, we believe that it would be appropriate to gain more experience in this area before codifying detailed requirements.
The final rule requires that national banks sharing electronic space with a third-party must take reasonable steps to clearly, conspicuously, and understandably distinguish between products and services offered by the bank and those offered by the third-party. In determining whether a bank has taken reasonable steps to distinguish third-party products and services available through shared electronic space, we will consider a number of factors. Among other things, we will look at web page formatting (including visual cues to the consumer), text-based or audio narrative, and compliance with other product-specific regulatory disclosure requirements. Additionally, what constitutes “reasonable steps” will depend upon the specific product and context; some products and contexts may require more information to be disclosed than others. Finally, the OCC Weblinking Bulletin will provide helpful guidance regarding both linking arrangements and other non-linking forms of shared electronic space.
A number of holding company commenters were concerned about how the proposed rule would apply to holding company web sites that share a common name with the bank and have web pages for a subsidiary national bank embedded in the holding company site. These commenters suggested that the final rule should not cover situations where a subsidiary bank shares its holding company's web site. However, we have consistently applied § 7.3001 to
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the regulatory flexibility analysis described in section 603 of the RFA, 5 U.S.C. 603, is not required if the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and the agency publishes such a certification and a statement explaining the factual basis for such certification in the
On the basis of the information currently available, the Comptroller of the Currency certifies that this final rule will not have a significant impact on a substantial number of small entities within the meaning of those terms as used in the RFA. The final regulation requires a national bank that shares a co-branded website or other electronic space with a bank subsidiary or a third-party to make certain disclosures designed to enable its customers to distinguish its products and services from those of the subsidiary or third-party. We believe it will be relatively inexpensive for a bank, either internally or through a servicer, to create and display the disclosures required by this regulation. Updating a website is a fixed cost for a bank, and is a practice that is done periodically. In addition, national banks are currently required to provide similar disclosures for leased space on bank premises and when sharing space jointly with other businesses. Therefore, the OCC does not believe that this requirement will have a significant impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required.
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (Unfunded Mandates Act) requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule.
The OCC has determined that the final rule will not result in expenditures by State, local, or tribal governments or by the private sector of $100 million or more. Accordingly, the OCC has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.
The Comptroller of the Currency has determined that this rule does not constitute a “significant regulatory action” for the purposes of Executive Order 12866. Under the most conservative cost scenarios that the OCC can develop on the basis of available information, the annual effect on the economy of the final rule falls well short of the $100 million threshold established by the Executive Order.
The OCC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The information collection requirements are contained in § 7.5010. This section requires a national bank that shares a co-branded website or other electronic space with a bank subsidiary or a third-party to make certain disclosures designed to enable its customers to distinguish its products and services from those of the subsidiary or third-party.
The OCC has a continuing interest in the public's opinion regarding collections of information. Members of the public may submit comments to Jessie Dunaway, OCC Clearance Officer, 250 E Street, SW, Attention: 1557-0225, Mailstop 8-4, Washington, DC 20219. Due to the temporary delay in mail delivery, you may prefer to send your comments by electronic mail to
The Riegle Community Development and Regulatory Improvement Act of 1994 requires that any new regulation that imposes “additional reporting, disclosure, or other requirements on insured depository institutions shall take effect on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form,” less certain exceptions apply.
Credit, Insurance, Investments, National banks, Reporting and recordkeeping requirements, Securities, Surety bonds.
12 U.S.C. 1
(a)
(b)
(1) Communicating information about providers of products and services, and proposed offering prices and terms to potential markets for these products and services;
(2) Communicating to the seller an offer to purchase or a request for information, including forwarding completed applications, application fees, and requests for information to third-party providers;
(3) Arranging for third-party providers to offer reduced rates to those customers referred by the bank;
(4) Providing administrative, clerical, and record keeping functions related to the bank's finder activity, including retaining copies of documents, instructing and assisting individuals in the completion of documents, scheduling sales calls on behalf of sellers, and conducting market research to identify potential new customers for retailers;
(5) Conveying between interested parties expressions of interest, bids, offers, orders, and confirmations relating to a transaction;
(6) Conveying other types of information between potential buyers, sellers, and other interested parties; and
(7) Establishing rules of general applicability governing the use and operation of the finder service, including rules that:
(i) Govern the submission of bids and offers by buyers, sellers, and other interested parties that use the finder service and the circumstances under which the finder service will pair bids and offers submitted by buyers, sellers, and other interested parties; and
(ii) Govern the manner in which buyers, sellers, and other interested parties may bind themselves to the terms of a specific transaction.
(c)
(d)
This subpart applies to a national bank's use of technology to deliver services and products consistent with safety and soundness.
(a)
(b)
(c)
(i) Whether the activity is the functional equivalent to, or a logical outgrowth of, a recognized banking activity;
(ii) Whether the activity strengthens the bank by benefiting its customers or its business;
(iii) Whether the activity involves risks similar in nature to those already assumed by banks; and
(iv) Whether the activity is authorized for state-chartered banks.
(2) The weight accorded each factor set out in paragraph (c)(1) of this section depends on the facts and circumstances of each case.
(d)
(i) Whether the activity facilitates the production or delivery of a bank's products or services, enhances the bank's ability to sell or market its products or services, or improves the effectiveness or efficiency of the bank's operations, in light of risks presented, innovations, strategies, techniques and new technologies for producing and delivering financial products and services; and
(ii) Whether the activity enables the bank to use capacity acquired for its banking operations or otherwise avoid economic loss or waste.
(2) The weight accorded each factor set out in paragraph (d)(1) of this section depends on the facts and circumstances of each case.
(a)
(1) Acting as an electronic finder by:
(i) Establishing, registering, and hosting commercially enabled web sites in the name of sellers;
(ii) Establishing hyperlinks between the bank's site and a third-party site, including acting as a “virtual mall” by providing a collection of links to web sites of third-party vendors, organized by-product type and made available to bank customers;
(iii) Hosting an electronic marketplace on the bank's Internet web site by providing links to the web sites of third-party buyers or sellers through the use of hypertext or other similar means;
(iv) Hosting on the bank's servers the Internet web site of:
(A) A buyer or seller that provides information concerning the hosted party and the products or services offered or sought and allows the submission of interest, bids, offers, orders and confirmations relating to such products or services; or
(B) A governmental entity that provides information concerning the services or benefits made available by the governmental entity, assists persons in completing applications to receive such services or benefits and permits persons to transmit their applications for such services or benefits;
(v) Operating an Internet web site that permits numerous buyers and sellers to exchange information concerning the products and services that they are willing to purchase or sell, locate potential counter-parties for transactions, aggregate orders for goods or services with those made by other parties, and enter into transactions between themselves;
(vi) Operating a telephone call center that provides permissible finder services; and
(vii) Providing electronic communications services relating to all aspects of transactions between buyers and sellers;
(2) Providing electronic bill presentment services;
(3) Offering electronic stored value systems; and
(4) Safekeeping for personal information or valuable confidential trade or business information, such as encryption keys.
(b)
(c)
Unless otherwise prohibited by Federal law, a national bank may engage in an electronic activity that is comprised of several component activities if each of the component activities is itself part of or incidental to the business of banking or is otherwise permissible under Federal law.
(a) A national bank may, in order to optimize the use of the bank's resources or avoid economic loss or waste, market and sell to third parties electronic capacities legitimately acquired or developed by the bank for its banking business.
(b) With respect to acquired equipment or facilities, legitimate excess electronic capacity that may be sold to others can arise in a variety of situations, including the following:
(1) Due to the characteristics of the desired equipment or facilities available in the market, the capacity of the most practical optimal equipment or facilities available to meet the bank's requirements exceeds its present needs;
(2) The acquisition and retention of additional capacity, beyond present needs, reasonably may be necessary for planned future expansion or to meet the expected future banking needs during the useful life of the equipment;
(3) Requirements for capacity fluctuate because a bank engages in batch processing of banking transactions or because a bank must have capacity to meet peak period demand with the result that the bank has periods when its capacity is underutilized; and
(4) After the initial acquisition of capacity thought to be fully needed for banking operations, the bank experiences either a decline in level of the banking operations or an increase in the efficiency of the banking operations using that capacity.
(c) Types of electronic capacity in equipment or facilities that banks may have legitimately acquired and that may be sold to third parties if excess to the bank's needs for banking purposes include:
(1) Data processing services;
(2) Production and distribution of non-financial software;
(3) Providing periodic back-up call answering services;
(4) Providing full Internet access;
(5) Providing electronic security system support services;
(6) Providing long line communications services; and
(7) Electronic imaging and storage.
(d) A national bank may sell to third parties electronic by-products legitimately acquired or developed by the bank for its banking business. Examples of electronic by-products that banks may have legitimately acquired that may be sold to third parties if excess to the bank's needs include:
(1) Software acquired (not merely licensed) or developed by the bank for banking purposes or to support its banking business; and
(2) Electronic databases, records, or media (such as electronic images) developed by the bank for or during the performance of its permissible data processing activities.
(a) It is part of the business of banking under 12 U.S.C. 24(Seventh) for a national bank to act as a certificate authority and to issue digital certificates verifying the identity of persons associated with a particular public/private key pair. As part of this service, the bank may also maintain a listing or repository of public keys.
(b) A national bank may issue digital certificates verifying attributes in addition to identity of persons associated with a particular public/private key pair where the attribute is one for which verification is part of or incidental to the business of banking. For example, national banks may issue digital certificates verifying certain
(c) When a national bank issues a digital certificate relating to financial capacity under this section, the bank shall include in that certificate an express disclaimer stating that the bank does not thereby promise or represent that funds will be available or will be advanced for any particular transaction.
(a)
(b)
It is part of the business of banking for a national bank to offer as a correspondent service to any of its affiliates or to other financial institutions any service it may perform for itself. The following list provides examples of electronic activities that banks may offer correspondents under this authority. This list is illustrative and not exclusive; the OCC may determine that other activities are permissible pursuant to this authority.
(a) The provision of computer networking packages and related hardware;
(b) Data processing services;
(c) The sale of software that performs data processing functions;
(d) The development, operation, management, and marketing of products and processing services for transactions conducted at electronic terminal devices;
(e) Item processing services and related software;
(f) Document control and record keeping through the use of electronic imaging technology;
(g) The provision of Internet merchant hosting services for resale to merchant customers; (h) The provision of communication support services through electronic means; and
(i) Digital certification authority services.
A national bank shall not be considered located in a State solely because it physically maintains technology, such as a server or automated loan center, in that state, or because the bank's products or services are accessed through electronic means by customers located in the state.
For purposes of 12 U.S.C. 85, the main office of a national bank that operates exclusively through the Internet is the office identified by the bank under 12 U.S.C. 22(Second) or as relocated under 12 U.S.C. 30 or other appropriate authority.
National banks that share electronic space, including a co-branded web site, with a bank subsidiary, affiliate, or another third-party must take reasonable steps to clearly, conspicuously, and understandably distinguish between products and services offered by the bank and those offered by the bank's subsidiary, affiliate, or the third-party.
Federal Trade Commission.
Final rule.
The Federal Trade Commission (“Commission”) is amending the Appliance Labeling Rule to require dishwasher manufacturers to submit their annual energy data for dishwashers this year on June 17 (rather than June 1 as currently required) to ensure that the data reflects the results of a new Department of Energy (“DOE”) test procedure, which will become effective on June 17, 2002 (
May 17, 2002.
Hampton Newsome, Attorney, Division of Enforcement, Federal Trade Commission, Washington, DC. 20580 (202-326-2889);
The Commission issued the Appliance Labeling Rule in 1979, 44 FR 66466 (Nov. 19, 1979), in response to a directive in the Energy Policy and Conservation Act of 1975 (“EPCA”).
The Rule requires manufacturers of all covered appliances to disclose specific energy consumption or efficiency information (derived from the DOE test procedures) at the point of sale in the form of an “EnergyGuide” label and in catalogs. The Rule requires
The Rule requires manufacturers, after filing an initial report, to report annually (the due date for dishwashers is June 1) the estimated annual energy consumption or energy efficiency ratings for the appliances derived from tests performed pursuant to the DOE test procedures. 16 CFR 305.8(b). Because manufacturers regularly add new models to their lines, improve existing models, and drop others, the data base from which the ranges of comparability are calculated is constantly changing. Under § 305.10 of the Rule, to keep the required information on labels consistent with these changes, the Commission publishes new ranges (but not more often than annually) if an analysis of the new information indicates that the upper or lower limits of the ranges have changed by more than 15%. Otherwise, the Commission publishes a statement that the prior ranges remain in effect for the next year.
On December 18, 2001 (66 FR 65094), DOE published amendments to the test procedure that manufacturers must use to determine the energy use of their dishwashers. This new test will become effective June 17, 2002. Among other things, the amended DOE test procedure will reduce the number of annual cycles manufacturers must use in calculating their dishwashers' energy consumption. This change uniformly will decrease the disclosed energy consumption for dishwashers.
Under EPCA, all energy use representations (including information on the EnergyGuide labels) must reflect the amended test procedure beginning 180 days after the change in the procedure is prescribed.
To address these issues, the Commission is amending the Rule to require manufacturers to submit their annual dishwasher data for this year on June 17, 2002 instead of June 1, 2002 as currently required by the Rule. Because the amended DOE test procedure will not be effective until June 17, this change to the submission date will ensure that the new data reflects compliance with the amended DOE test procedure. In addition, the Commission is amending the Rule to set a 60-day effective date for any new standard size dishwasher ranges published this year.
The Commission also is announcing that it does not expect manufacturers to change their labels this year to reflect the amended test procedure until after the Commission has published these new ranges (or published a statement that there will be no new ranges). In other words, the Commission intends to exercise discretion to not take law enforcement action pursuant to § 6293(c) against manufacturers that wait to account for the new test procedure on their labels until the Commission has provided notice about new ranges for dishwashers. The Commission plans to publish a notice announcing any changes to the ranges shortly after June 17. Assuming new ranges are published this year, the Commission expects that manufacturers would begin labeling their products with the results of the amended test procedure and the revised ranges on labels at that time. As indicated above, any new ranges for standard-size models would be effective 60 days after publication.
Although the Commission's decision to allow an enforcement grace period for compliance with section 6293(c) here will cause a minor delay in the dissemination of labels reflecting the amended test procedure, it will ensure that both the energy use representations and ranges of comparability reflect data derived from the new test procedure. Thus, the approach discussed in this notice will avoid the problems and potential confusion for both consumers and manufacturers that could result from strict adherence to the current deadlines. For consumers, a blending of new test data with ranges based on prior data could affect their ability to make meaningful comparisons among competing models. For manufacturers, this approach allows them to change the labels on their dishwasher products only once instead of twice in a short period of time.
The amendments published in this notice involve minor, procedural changes to the submission date for data already required by the Rule and to the effective date for new dishwasher ranges this year. These technical amendments merely alter the dates on which compliance is required and do not affect the requirements of the Rule nor do the amendments alter the frequency with which regulated entities must comply with these requirements. These changes will help to ensure that information on new EnergyGuide labels for dishwashers will reflect both energy use representations and any resulting new ranges of comparability based on the amended test. In addition, these minor amendments must take effect in a timely fashion to avoid the problems discussed in this notice. Accordingly, the Commission finds for good cause that public comment and a 30-day effective date for these technical, procedural amendments are impractical and
The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Appliance Labeling Rule. The amendments merely alter the dates on which compliance is required and do not affect the requirements of the rule nor do the amendments alter the frequency with which regulated entities must comply with these requirements. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.
In the 1988 NPR, the Commission stated that the Rule contains disclosure and reporting requirements that constitute “information collection requirements” as defined by 5 CFR 1320.7(c), the regulation that implements the Paperwork Reduction Act (“PRA”).
Advertising, Energy conservation, Household appliances, Labeling, Reporting and recordkeeping requirements.
42 U.S.C. 6294.
(b)(1) All data required by § 305.8(a) except serial numbers shall be submitted to the Commission annually, on or before the following dates:
(2) All revisions to such data (both additions to and deletions from the preceding data) shall be submitted to the Commission as part of the next annual report period.
(a) The range of estimated annual energy consumption or energy efficiency ratings for each covered product (except fluorescent lamp ballasts, showerheads, faucets, water closets or urinals) shall be taken from the appropriate appendix to this rule in effect at the time the labels are affixed to the product. The Commission shall publish revised ranges annually in the
Ranges will be changed if the estimated annual energy consumption or energy efficiency ratings of the products within the range change in a way that would alter the upper or lower estimated annual energy consumption or energy efficiency rating limits of the range by 15% or more from that previously published. When a range is revised, all information disseminated after 90 days following the publication of the revision shall conform to the revised range subject to the following exception. For any standard size dishwasher range revised in 2002, all information disseminated after 60 days following the publication of the revision shall conform to the revised range. Products that have been labeled prior to the effective date of a modification under this section need not be relabeled.
By direction of the Commission.
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations relating to certain adoptions, changes, and retentions of annual accounting periods. The final regulations are necessary to update, clarify, and reorganize the rules and procedures for adopting, changing, and retaining a taxpayer's annual accounting period. The final regulations primarily affect taxpayers that want to adopt an annual accounting period under section 441 or that must receive approval from the Commissioner to adopt, change, or retain their annual accounting periods under section 442.
Michael Schmit or Roy Hirschhorn at (202) 622-4960 (not a toll-free number).
The collections of information contained in these final regulations have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1748. Responses to these collections of information are required for certain taxpayers to adopt, change, or retain an annual accounting period.
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 control number assigned by the Office of Management and Budget.
The estimated annual burden per respondent varies from 20 minutes to one hour, depending on individual circumstances, with an estimated average of 30 minutes.
Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S, Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.
Books or records relating to this 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.
On June 12, 2001, the IRS and Treasury Department published in the
The proposed regulations both define the term
The proposed regulations generally provide that changes to or from a 52-53-week taxable year are treated as changes in annual accounting periods that require the approval of the Commissioner, and describe some specific instances in which such approval may be obtained automatically under administrative procedures to be published by the Commissioner. Consistent with the general framework of the regulations, the descriptions of these specific changes have been removed from the final regulations. Taxpayers should see Rev. Proc. 2002-37 and Rev. Proc. 2002-38, 2002-22 I.R.B., for situations in which automatic approval for changes to or from a 52-53-week taxable year will be granted. The final regulations clarify that a taxpayer will not be granted automatic approval for a change from one 52-53-week taxable year to another 52-53-week taxable year, even if both years reference the same calendar month.
The proposed regulations provide special rules for certain short periods required to effect a change in annual accounting period to (or from) a 52-53-week taxable year. The proposed regulations provide that if the short period is 6 days or less, such short period is not a separate taxable year but is instead added to and deemed a part of the following taxable year.
One commentator suggested that taxpayers be permitted the option of adding such a short period to either: (1) the following taxable year (as the proposed regulations would require); or (2) the prior taxable year, whichever convention is used by the taxpayer for financial accounting purposes.
The IRS and Treasury Department believe that adopting the commentator's suggestion in this case would present certain administrative difficulties, complicate tax administration, and possibly encourage the use of hindsight in tax reporting. After careful consideration, the IRS and Treasury have concluded that it is in the best interests of sound tax administration to have a uniform and certain rule applicable in all such situations. Thus, the final regulations do not adopt this suggestion.
The proposed regulations provide a general rule concerning the application of certain effective dates as they apply to taxpayers employing 52-53-week taxable years. In response to comments, the final regulations clarify that this rule also applies to administrative guidance published by the Commissioner.
A comment was received suggesting that additional
The proposed regulations provide rules for certain pass-through entities and owners of pass-through entities relating to the treatment of certain taxable years ending with reference to the same calendar month. These rules are designed to prevent substantial deferral and distortion of income reporting.
The IRS and Treasury have become aware of a potentially abusive situation involving the deferral of income reporting in the case of closely-held Real Estate Investment Trusts (REITs) (within the meaning of section 6655(e)(5)(B)) and certain owners of interests in closely-held REITs (within the meaning of section 6655(e)(5)(A)).
For estimated tax purposes, certain owners of interests in closely-held REITs are required to recognize income from the REIT in a manner similar to partners in a partnership. Unlike a partnership, however, REITs are not required to use a taxable year that conforms to the taxable year of their owners but rather are required to use a taxable year ending December 31 pursuant to section 859. Thus, the potential for deferral of estimated taxes exists with respect to certain owners of interests in closely-held REITs, including owners with 52-53-week taxable years that reference December 31, as well as fiscal-year owners.
In an attempt to reduce the potential for deferral of estimated taxes in the case of certain owners of interests in closely-held REITs, the final regulations have been modified to add: (1) a closely-held REIT (within the meaning of section 6655(e)(5)(B)) to the definition of a
The IRS recognizes that changes to the taxable year of a taxpayer may shift the taxable year in which foreign taxes are treated as accruing for U.S. purposes. The IRS also recognizes that similar results may occur in the case of taxpayers that use a 52-53-week taxable year, which will not always include the last day of the taxpayer's taxable year in a foreign jurisdiction. The IRS is working on guidance that it expects will be issued this year to ensure that changes in U.S. taxable years, or the use of a 52-53-week taxable year, do not result in unintended and inappropriate consequences for foreign tax credit purposes. Comments are requested on the changes necessary and appropriate to address the accrual of foreign taxes in these situations.
The proposed regulations provide specific rules for the time and manner of filing an application to adopt, change, or retain an annual accounting period. Consistent with the general framework of the regulations, the IRS and Treasury have concluded that it is more appropriate to remove the specific time and manner requirements for filing applications for adoptions, changes, and retentions in annual accounting period from the final regulations, and provide them instead in administrative procedures published by the Commissioner. See Rev. Proc. 2002-37, Rev. Proc. 2002-38, and Rev. Proc. 2002-39. The IRS and Treasury believe that providing these rules in administrative guidance, rather than in regulations, allows the IRS more flexibility to respond in the future to the changing needs of taxpayers and the IRS.
The proposed regulations provide that an application for non-automatic approval of an annual accounting period change may be filed no earlier than the day following the close of the first effective year and no later than the 15th day of the third calendar month following the close of the first effective year. One commentator suggested that such applications be permitted to be filed no earlier than the later of: (1) The first day of the short period resulting from the proposed tax year change; or (2) 60 days prior to the end of the short period.
The IRS currently allows taxpayers to file applications with the national office within the referenced 60-day period and believes that many taxpayers take advantage of early filing, even knowing that their applications lack adequate information, in an effort to obtain priority over other applications processed by the national office. However, the lack of adequate financial and other required information common to such early applications requires that the IRS devote additional resources to properly develop and process the applications. Ultimately, this causes a delay in processing both the early applications, and other applications as well. For this reason, the administrative guidance issued concurrently with these final regulations do not adopt this suggestion. However, the IRS and Treasury Department intend to study filing patterns under the new rules, and will consider expanding or modifying the time frame for filing applications with the national office if circumstances warrant.
One commentator recommended that instead of requiring all taxpayers to file the application by the 15th day of the third calendar month following the close of the first taxable year in which the taxpayer wants the adoption, change, or retention to be effective (the first effective year), as the proposed regulations provide, the due date for the application should be the due date of the taxpayer's return for the short period, without extensions. The IRS and Treasury believe that such a rule will be simpler for taxpayers (such as individuals and partnerships) and the IRS. Accordingly, this change is adopted in the administrative guidance issued concurrently with these final regulations.
One commentator suggested that the proposed regulations be modified to waive the Form 1128, “Application to Adopt, Change, or Retain a Tax Year,” filing requirement in the case of partnerships, S corporations, and personal service corporations (PSCs) changing to a “required taxable year” for the first taxable year for which such change is required. Alternatively, the commentator recommended use of an “automatic consent” procedure similar to the procedure outlined in the proposed regulations for subsidiaries changing tax years to conform to the periods of their affiliated groups. The commentator reasoned that changes to statutorily required taxable years should not require the Commissioner's prior approval through any filing or application process.
Except in very limited circumstances (
The proposed regulations conform the record keeping requirement for taxpayers using a fiscal year to that of § 1.446-1(a)(4), which allows for a reconciliation between the taxpayer's books and return. However, the preamble to the proposed regulations noted that, as a term and condition of obtaining approval to adopt, change to, or retain an annual accounting period under section 442, certain taxpayers nevertheless may be required, under administrative procedures published by the Commissioner, to compute income and keep their books (including financial statements and reports to creditors) on the basis of the requested annual accounting period. In fact, strict book conformity is a general requirement in the administrative procedures for approval to make many changes. See,
One commentator objected to the proposed elimination of procedures contained in the existing regulations under section 442 under which certain corporations are granted automatic approval to change their taxable year without a strict book conformity requirement (
The IRS and Treasury Department believe it is appropriate to apply the more lenient book conformity rule of section 446 in the case of a taxpayer adopting, changing to, or retaining a required or ownership taxable year and in the case of a foreign corporation that is required by foreign law to use a particular year for financial accounting purposes. See,
A comment was received recommending that the limitation on additional required taxable year changes in the proposed regulations for partnerships using a majority-interest taxable years, be extended to partnerships using other required taxable years (e.g., to principal partners' taxable years and to least-aggregate-deferral taxable years). The limitation for changes to a majority interest taxable year is specifically provided in section 706(b)(4)(B). No such statutory authority exists for providing similar limitations in the case of other required taxable year changes by partnerships. Accordingly, this comment was not adopted in the final regulations. However, the Treasury Department is considering this comment in connection with a legislative simplification study.
The proposed regulations (consistent with the existing temporary regulations) generally provide for a 1-year testing period for determining whether a taxpayer is a PSC. In the preamble to the proposed regulations, the IRS and Treasury Department responded to a comment received in connection with the original notice of proposed rulemaking cross-referenced by the temporary regulations. The original commentator suggested that the testing period be expanded to the three preceding taxable years in order to minimize instances in which taxpayers become PSCs due to temporary or aberrational conditions. In response, the IRS and Treasury Department indicated that they would consider alternatives to the current 1-year period if similar requests were received in comments to the proposed regulations now that taxpayers have significantly more experience with the 1-year rule.
Although some comments were received recommending a general 3-year testing period for both PSCs and S corporations, the suggestions were not directed to particular taxpayer burdens stemming from the 1-year testing period for a PSC or the original concern about taxpayers becoming a PSC because of temporary or aberrational conditions. Rather, commentators suggested that a general 3-year testing period rule would reduce repetitive “required tax year” changes, and promote tax-year certainty.
The IRS and Treasury Department believe that these reasons do not warrant extending the 1-year testing period for PSCs and S corporations because the current required taxable year framework for PSCs and S corporations should not result in repetitive required taxable year changes. Once a PSC or S corporation has changed to its required taxable year (i.e., a calendar year), any further changes would be voluntary rather than required. Accordingly, this suggestion has not been adopted in the final regulations.
Rev. Rul. 57-589 is obsolete.
Rev. Rul. 65-316 (1965-2 C.B. 149) is obsolete.
Rev. Rul. 68-125 (1968-1 C.B. 189) is obsolete.
Rev. Rul. 69-563 is obsolete.
Rev. Rul. 74-326 (1974-2 C.B. 142) is obsolete.
Rev. Rul. 78-179 (1978-1 C.B. 132) is obsolete.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collections of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that few small entities are expected to adopt a 52-53-week taxable year, triggering the collection of information, and that for those who do, the burden imposed under § 1.441-2(b)(1)(ii) will be minimal. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for
The principal authors of these regulations are Roy A. Hirschhorn and Michael F. Schmit of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accounting, Income taxes, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
This section lists the captions contained in §§ 1.441-1 through 1.441-4 as follows:
(a)
(2)
(b)
(1)
(i) The period for which a return is made, if a return is made for a period of less than 12 months (short period). See section 443 and the regulations thereunder;
(ii) Except as provided in paragraph (b)(1)(i) of this section, the taxpayer's required taxable year (as defined in paragraph (b)(2) of this section), if applicable;
(iii) Except as provided in paragraphs (b)(1)(i) and (ii) of this section, the taxpayer's annual accounting period (as defined in paragraph (b)(3) of this section), if it is a calendar year or a fiscal year; or
(iv) Except as provided in paragraphs (b)(1)(i) and (ii) of this section, the calendar year, if the taxpayer keeps no books, does not have an annual accounting period, or has an annual accounting period that does not qualify as a fiscal year.
(2)
(A) In the case of a foreign sales corporation or domestic international sales corporation, the taxable year determined under section 441(h) and § 1.921-1T(a)(11), (b)(4), and (b)(6);
(B) In the case of a personal service corporation (PSC), the taxable year determined under section 441(i) and § 1.441-3;
(C) In the case of a nuclear decommissioning fund, the taxable year determined under § 1.468A-4(c)(1);
(D) In the case of a designated settlement fund or a qualified settlement fund, the taxable year determined under § 1.468B-2(j);
(E) In the case of a common trust fund, the taxable year determined under section 584(i);
(F) In the case of certain trusts, the taxable year determined under section 644;
(G) In the case of a partnership, the taxable year determined under section 706 and § 1.706-1;
(H) In the case of an insurance company, the taxable year determined under section 843 and § 1.1502-76(a)(2);
(I) In the case of a real estate investment trust, the taxable year determined under section 859;
(J) In the case of a real estate mortgage investment conduit, the taxable year determined under section 860D(a)(5) and § 1.860D-1(b)(6);
(K) In the case of a specified foreign corporation, the taxable year determined under section 898(c)(1)(A);
(L) In the case of an S corporation, the taxable year determined under section 1378 and § 1.1378-1; or
(M) In the case of a member of an affiliated group that makes a consolidated return, the taxable year determined under § 1.1502-76.
(ii)
(A)
(B)
(C)
(3)
(4)
(5)
(A) A period of 12 consecutive months ending on the last day of any month other than December; or
(B) A 52-53-week taxable year, if such period has been elected by the taxpayer. See § 1.441-2.
(ii)
(6)
(7)
(8)
(c)
(2)
(ii)
(d)
(e)
(f)
(a)
(i) Varies from 52 to 53 weeks;
(ii) Ends always on the same day of the week; and
(iii) Ends always on—
(A) Whatever date this same day of the week last occurs in a calendar month; or
(B) Whatever date this same day of the week falls that is the nearest to the last day of the calendar month.
(2)
(3)
(4)
If the taxpayer elects a taxable year ending always on the last Saturday in November, then for the year 2001, the taxable year would end on November 24, 2001. On the other hand, if the taxpayer had elected a taxable year ending always on the Saturday nearest to the end of November, then for the year 2001, the taxable year would end on December 1, 2001.
(b)
(ii)
(A) The calendar month with reference to which the 52-53-week taxable year ends;
(B) The day of the week on which the 52-53-week taxable year always will end; and
(C) Whether the 52-53-week taxable year will always end on the date on which that day of the week last occurs in the calendar month, or on the date on which that day of the week falls that is nearest to the last day of that calendar month.
(2)
(ii)
(3)
A taxpayer having a fiscal year ending April 30, obtains approval to change to a 52-53-week taxable year ending the last Saturday in April for taxable years beginning after April 30, 2001. This change involves a short period of 362 days, from May 1, 2001, to April 27, 2002, inclusive. Because the change results in a short period of 359 days or more, it is not placed on an annual basis and is treated as a full taxable year.
Assume the same conditions as
(c)
(2)
Assume that an income tax provision is applicable to taxable years beginning on or after January 1, 2001. For that purpose, a 52-53-week taxable year beginning on any day within the period December 26, 2000, to January 4, 2001, inclusive, is treated as beginning on January 1, 2001.
Assume that an income tax provision requires that a return must be filed on or before the 15th day of the third month following the close of the taxable year. For that purpose, a 52-53-week taxable year ending on any day during the period May 25 to June 3, inclusive, is treated as ending on May 31, the last day of the month ending nearest to the last day of the taxable year, and the return, therefore, must be made on or before August 15.
Assume that a revenue procedure requires the performance of an act by the taxpayer within “the first 90 days of the taxable year,” by “the 75th day of the taxable year,” or, alternately, by “the last day of the taxable year.” The taxpayer employs a 52-53-week taxable year that ends always on the Saturday closest to the last day of December. These requirements are not expressed in terms of taxable years beginning, including, or ending with reference to the first or last day of a specified calendar month, and are accordingly outside the scope of the rule stated in § 1.441-2(c)(1). Accordingly, the taxpayer must perform the required act by the 90th, 75th, or last day, respectively, of its taxable year.
X, a corporation created on January 1, 2001, elects a 52-53-week taxable year ending on the Friday nearest the end of December. Thus, X's first taxable year begins on Monday, January 1, 2001, and ends on Friday, December 28, 2001; its next taxable year begins on Saturday, December 29, 2001, and ends on Friday, January 3, 2003; and its next taxable year begins on Saturday, January 4, 2003, and ends on Friday, January 2, 2004. For purposes of applying the provisions of Part II, subchapter B, chapter 6 of the Internal Revenue Code, X's first taxable year is deemed to end on December 31, 2001; its next taxable year is deemed to begin on January 1, 2002, and end on December 31, 2002, and its next taxable year is deemed to begin on January 1, 2003, and end on December 31, 2003. Accordingly, each such taxable year is treated as including one and only one December 31st.
(3)
(4)
Assume a change in the rate of tax is effective for taxable years beginning after June 30, 2002. For a 52-53-week taxable year beginning on Friday, November 2, 2001, the tax must be computed on the basis of the old rates for the actual number of days from November 2, 2001, to June 30, 2002, inclusive, and on the basis of the new rates for the actual number of days from July 1, 2002, to Thursday, October 31, 2002, inclusive.
Assume a change in the rate of tax is effective for taxable years beginning after June 30, 2001. For this purpose, a 52-53-week taxable year beginning on any of the days from June 25 to July 4, inclusive, is treated as beginning on July 1. Therefore, no computation under section 15 will be required for such year because of the change in rate.
(d)
(e)
(2)
(3)
(ii)
(4)
ABC Partnership uses a 52-53-week taxable year that ends on the Wednesday nearest to December 31, and its partners, A, B, and C, are individual calendar year taxpayers. Assume that, for ABC's taxable year ending January 3, 2001, each partner's distributive share of ABC's taxable income is $10,000. Under section 706(a) and paragraph (e)(1) of this section, for the taxable year ending December 31, 2000, A, B, and C each must include $10,000 in income with respect to the ABC year ending January 3, 2001. Similarly, if ABC makes a guaranteed payment to A on January 2, 2001, A must include the payment in income for A's taxable year ending December 31, 2000.
X, a PSC, uses a 52-53-week taxable year that ends on the Wednesday nearest to December 31, and all of the employee-owners of X are individual calendar year taxpayers. Assume that, for its taxable year ending January 3, 2001, X pays a bonus of $10,000 to each employee-owner on January 2, 2001. Under paragraph (e)(2) of this section, each employee-owner must include its bonus in income for the taxable year ending December 31, 2000.
(5)
(a)
(2)
(b)
(2)
(3)
(4)
(5)
X, whose taxable year ends on January 31, 2001, becomes a PSC for its taxable year beginning February 1, 2001, and does not obtain the approval of the Commissioner for using a fiscal year. Thus, for taxable years ending before February 1, 2001, this section does not apply with respect to X. For its taxable year beginning on February 1, 2001, however, X will be required to comply with paragraph (a) of this section. Thus, unless X obtains approval of the Commissioner to use a January 31 taxable year, or makes a section 444 election, X will be required to change its taxable year to the calendar year under paragraph (b) of this section by using a short taxable year that begins on February 1, 2001, and ends on December 31, 2001. Under paragraph (b)(1) of this section, X may obtain automatic approval to change its taxable year to a calendar year. See § 1.442-1(b).
Assume the same facts as in
(c)
(i) The taxpayer is a C corporation (as defined in section 1361(a)(2)) for the taxable year;
(ii) The principal activity of the taxpayer during the testing period is the performance of personal services;
(iii) During the testing period, those services are substantially performed by employee-owners (as defined in paragraph (g) of this section); and
(iv) Employee-owners own (as determined under the attribution rules of section 318, except that the language “any” applies instead of “50 percent” in section 318(a)(2)(C)) more than 10 percent of the fair market value of the outstanding stock in the taxpayer on the last day of the testing period.
(2)
(ii)
(A) The last day of that taxable year; or
(B) The last day of the calendar year in which that taxable year begins.
(3)
Corporation A's first taxable year begins on June 1, 2001, and A desires to use a September 30 taxable year. However, if A is a personal service corporation, it must obtain the Commissioner's approval to use a September 30 taxable year. Pursuant to paragraph (c)(2)(ii) of this section, A's testing period for its first taxable year beginning June 1, 2001, is the period June 1, 2001 through September 30, 2001. Thus, if, based upon such testing period, A is a personal service corporation, A must obtain the Commissioner's permission to use a September 30 taxable year.
The facts are the same as in
(d)
(2)
(e)
(2)
(A) Wages and salaries; and
(B) Any other amounts, attributable to services performed for or on behalf of the corporation by a person who is an employee of the corporation (including an owner of the corporation who is treated as an employee under paragraph (g)(2) of this section) during the testing period. Such amounts include, but are not limited to, amounts attributable to deferred compensation, commissions, bonuses, compensation includible in income under section 83, compensation for services based on a percentage of profits, and the cost of providing fringe benefits that are includible in income.
(ii)
(3)
(ii)
(iii)
(A)
(B)
(f)
(2)
(i) The corporation's compensation cost attributable to its activities that are treated as the performance of personal services is determined under paragraph (e)(3) of this section; and
(ii) The portion of the amount determined under paragraph (f)(2)(i) of this section that is attributable to personal services performed by employee-owners is to be determined by the taxpayer in any reasonable and consistent manner.
(3)
For its taxable year beginning February 1, 2001, Corp A's testing period is the taxable year ending January 31, 2000. During that testing period, A's only activity was the performance of personal services. The total compensation cost of A (including compensation cost attributable to employee-owners) for the testing period was $1,000,000. The total compensation cost attributable to employee-owners of A for the testing period was $210,000. Pursuant to paragraph (f)(1) of this section, the employee-owners of A substantially performed the personal services of A during the testing period because the compensation cost of A's employee-owners was more than 20 percent of the total compensation cost for all of A's employees (including employee-owners).
Corp B has the same facts as corporation A in
(g)
(i) The person is an employee of the corporation on any day of the testing period; and
(ii) The person owns any outstanding stock of the corporation on any day of the testing period.
(2)
(h)
(i) The members of the affiliated group are treated as a single corporation;
(ii) The employees of the members of the affiliated group are treated as employees of such single corporation; and
(iii) All of the stock of the members of the affiliated group that is not owned by any other member of the affiliated group is treated as the outstanding stock of that corporation.
(2)
The affiliated group AB, consisting of corporation A and its wholly owned subsidiary B, filed a consolidated Federal income tax return for the taxable year ending January 31, 2001, and AB is attempting to determine whether it is affected by this section for its taxable year beginning February 1, 2001. During the testing period (i.e., the taxable year ending January 31, 2001), A did not perform personal services. However, B's only activity was the performance of personal services. On the last day of the testing period, employees of A did not own any stock in A. However, some of B's employees own stock in A. In the aggregate, B's employees own 9 percent of A's stock on the last day of the testing period. Pursuant to paragraph (h)(1) of this section, this section is effectively applied on a consolidated basis to members of an affiliated group filing a consolidated Federal income tax return. Because the only employee-owners of AB are the employees of B, and because B's employees do not own more than 10 percent of AB on the last day of the testing period, AB is not a PSC subject to the provisions of this section. Thus, AB is not required to determine on a consolidated basis whether, during the testing period, its principal activity is the providing of personal services, or the personal services are substantially performed by employee-owners.
The facts are the same as in Example 1, except that on the last day of the testing period A owns only 80 percent of B. The remaining 20 percent of B is owned by employees of B. The fair market value of A, including its 80 percent interest in B, as of the last day of the testing period, is $1,000,000. In addition, the fair market value of the 20 percent interest in B owned by B's employees is $50,000 as of the last day of the testing period. Pursuant to paragraphs (c)(1)(iv) and (h)(1) of this section, AB must determine whether the employee-owners of A and B (i.e., B's employees) own more than 10 percent of the fair market value of A and B as of the last day of the testing period. Because the $140,000 [($1,000,000 x .09) + $50,000] fair market value of the stock held by B's employees is greater than 10 percent of the aggregate fair market value of A and B as of the last day of the testing period, or $105,000 [$1,000,000 + $50,000 x .10], AB may be subject to this section if, on a consolidated basis during the testing period, the principal activity of AB is the performance of personal services and the personal services are substantially performed by employee-owners.
Sections 1.441-0 through 1.441-3 are applicable for taxable years ending on or after May 17, 2002.
(a)
(b)
(2)
(3)
(4)
(c)
(d)
(2) The provisions of this paragraph (d) may be illustrated by the following example:
H & W marry on September 25, 2001. H is on a fiscal year ending June 30, and W is on a calendar year. H wishes to change to a calendar year in order to file joint returns with W. W's first taxable year after marriage ends on December 31, 2001. H may not change to a calendar year for 2001 since, under this paragraph (d), he would have had to file a return for the short period from July 1 to December 31, 2000, by April 16, 2001. Since the date of marriage occurred subsequent to this due date, the return could not be filed under this paragraph (d). Therefore, H cannot change to a calendar year for 2001. However, H may change to a calendar year for 2002 by filing a return under this paragraph (d) by April 15, 2002, for the short period from July 1 to December 31, 2001. If H files such a return, H and W may file a joint return for calendar year 2002 (which is W's second taxable year ending after the date of marriage).
(e)
(a)
(2) The rules of this paragraph (a)(1) may be illustrated by the following example:
(3) If a partner receives distributions under section 731 or sells or exchanges all or part of a partnership interest, any gain or loss arising therefrom does not constitute partnership income.
(b)
(2)
(A) The majority interest taxable year, as defined in section 706(b)(4);
(B) If there is no majority interest taxable year, the taxable year of all of the principal partners of the partnership, as defined in 706(b)(3) (the principal partners' taxable year); or
(C) If there is no majority interest taxable year or principal partners' taxable year, the taxable year that produces the least aggregate deferral of income as determined under paragraph (b)(3) of this section.
(ii)
(3)
(ii)
(iii)
(iv)
1. Partnership P is on a fiscal year ending June 30. Partner A reports income on the fiscal year ending June 30 and Partner B reports income on the fiscal year ending July 31. A and B each have a 50 percent interest in partnership profits. For its taxable year beginning July 1, 1987, the partnership will be required to retain its taxable year since the fiscal year ending June 30 results in the least aggregate deferral of income to the partners. This determination is made as follows:
The facts are the same as in
The facts are the same as in
(ii) In May 1988, Partner A sells a 45 percent interest in the partnership to C, who reports income on the fiscal year ending April 30. For the taxable period beginning April 1, 1989, the fiscal year ending April 30 is the taxable year that produces the least aggregate deferral of income to the partners. However, under paragraph (b)(3)(iii) of this section the partnership is required to retain its fiscal year ending March 31. This determination is made as follows:
(4)
(i)
(ii)
(B)
(C)
(iii)
(5)
(6)
(7)
(8)
(B)
(C)
(ii)
(9)
(10)
(d)
(a)
(b)
(c)
(2)
(d)
(e)
(2)
(f)
26 U.S.C. 168(f)(8)(G) and 7805.
26 U.S.C. 7805 * * *
26 U.S.C. 7805.
26 U.S.C. 7805.
(b) * * *
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval of amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the Arkansas abandoned mine land (AML) reclamation plan (Arkansas plan) and the Arkansas regulatory program (Arkansas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Arkansas proposed revisions to its AML reclamation plan regulations concerning eligible lands and water, reclamation objectives and priorities, and reclamation project evaluation. Arkansas proposed to revise its regulatory program regulations concerning procedures for assessment conference and to add revegetation success standards for grazingland and prime farmland. Arkansas revised its plan and program to be consistent with the corresponding Federal regulations.
May 17, 2002.
Michael C. Wolfrom, Director, Tulsa Field Office, Telephone: (918) 581-6430, Internet:
The Abandoned Mine Land Reclamation Program was established by Title IV of the Act (30 U.S.C. 1201
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.”
By letter dated August 13, 2001 (Administrative Record No. AR-568), Arkansas sent us an amendment to its plan and program under SMCRA (30 U.S.C. 1201
We announced receipt of the proposed amendment in the October 5, 2001,
During our review of the amendment, we identified concerns about the Phase III revegetation success standards for grazingland and the Phase II and Phase III revegetation success standards for prime farmland. We notified Arkansas of these concerns by letter dated December 10, 2001 (Administrative Record No. AR-586.05).
By letter dated February 25, 2002 (Administrative Record No. AR-586.07), Arkansas sent us additional explanatory information and revisions to its proposed program amendment. Because the additional information and revisions merely clarified certain provisions of Arkansas' amendment, we did not reopen the public comment period.
Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15, 732.17, 884.14, and 884.15. We are approving the amendment.
Arkansas revised paragraph (b)(4) by replacing the reference to “30 CFR 872.11(b)(2) and (3)” with a reference to “Section 402(g)(1) and (5) of Public Law 95-97.”
The reference change in section 874.12 merely corrects an incorrect citation reference and does not change the meaning of this previously approved section. Therefore, we find that the revision does not alter the substance of the Arkansas plan.
Arkansas deleted paragraph (d) of this section regarding research and demonstration projects relating to the development of surface coal mining reclamation and water quality control program methods and techniques. By deleting this paragraph, the above projects will no longer have priority as AML reclamation projects.
Section 874.13 of Arkansas' regulations provides the specific criteria for ranking and identifying AML reclamation projects. The provisions of 30 CFR 884.13(c)(2) of the Federal regulations requires the specific criteria used by a State to be consistent with section 403 of the Act. The Energy Policy Act of 1992 removed the funding of coal research and demonstration projects from section 403 of the Act. Therefore, we find that, with the deletion of paragraph (d), section 874.13 of Arkansas' regulations is consistent with the requirements of 30 CFR 884.13(c)(2).
Arkansas revised paragraph (a)(2) of this section by deleting the last sentence concerning research and demonstration projects.
Section 874.14 of Arkansas' regulations provides the factors for evaluating proposed reclamation projects and completed reclamation work. The last sentence of paragraph (a)(2) concerned the evaluation of research and demonstration projects. As stated above, the Energy Policy Act of 1992 removed the funding of coal research and demonstration projects from section 403 of the Act. Further, Arkansas has removed coal research and demonstration projects from its specific criteria for ranking and identifying AML reclamation projects. Therefore, we find that the deletion of the last sentence in section 874.14(a)(2) is consistent with the requirements of 30 CFR 884.13.
In paragraph (a) of this section, Arkansas removed the department's old name of “Arkansas Department of Pollution Control and Ecology” and replaced it with the department's new name of “Arkansas Department of Environmental Quality.”
We find that the name change in section 845.18 does not change the meaning of this previously approved section, and therefore does not render the provision less effective than the corresponding Federal regulation at 30 CFR 845.18.
The Federal regulations at 30 CFR 816.116(a)(1) require that each regulatory authority select revegetation success standards and statistically valid sampling techniques for measuring revegetation success and include them in its approved regulatory program. Arkansas developed its revegetation success guidelines to satisfy this requirement. The guidelines include revegetation success standards and statistically valid sampling techniques for measuring revegetation success of reclaimed grazingland in accordance with Arkansas' counterparts to the Federal regulations at 30 CFR 816.116. The guidelines also include revegetation success standards and statistically valid sampling techniques for restoring soil productivity of prime farmland soils in accordance with Arkansas' counterparts to the Federal regulations at 30 CFR 823.15. Arkansas' standards, criteria, and parameters for revegetation success reflect the extent of cover, species composition, and soil stabilization required in the Federal regulations at 30 CFR 816.111. As required by the Federal regulations at 30 CFR 816.116(a)(2) and 823.15, Arkansas' revegetation success standards include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover, production, or stocking suitable to the approved postmining land uses. Arkansas' guidelines specify the procedures and techniques to be used for sampling, measuring, and analyzing vegetation parameters. Ground cover, production, and stocking suitable to grazinglands are considered equal to the approved success standard when they are not less than 90 percent of the success standard. The average production of crops for prime farmland soils must equal or exceed the average production of the same crops for the same or similar unmined prime farmland soils. Sampling techniques for measuring success use a 90-percent statistical confidence interval for all land uses. We find that use of these procedures and techniques will ensure consistent, objective collection of vegetation data.
For the above reasons, we find that the revegetation success standards and statistically valid sampling techniques for measuring revegetation success contained in Arkansas' revegetation success guidelines satisfy the requirements of 30 CFR 816.116(a)(1) and 823.15.
We asked for public comments on the amendment, but did not receive any.
Under 30 CFR 732.17(h)(11)(i), 884.14(a)(2), and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Arkansas program (Administrative Record No. AR-568.01).
1. The FWS stated that at III.C.1 concerning reference area requirements, the guidelines should stipulate that reference plots using crops should not be used for grazingland reclamation sites. Only like plant species should be used as reference plots.
2. The FWS stated that at IV.B concerning sampling techniques, the guidelines should stipulate that the same transects are used each year.
3. The FWS stated that at IV.B concerning sampling techniques, the guidelines should clarify what criteria is used to determine whether sampling frames or whole harvesting is chosen to calculate productivity.
4. The FWS recommended that whole area harvesting should not be conducted during ground bird nesting season.
5. The FWS recommended that the operator should record the date on the sampling data sheets. The FWS pointed out that this is important since samples will be weighed both before and after drying, and the time of year that the samples were harvested needs to be taken into consideration. Also, since comparisons of the reference plots with the reclamation plots will be made, these samples should be collected at the same time.
However, Appendix D did not have a place to record the date of sampling. By letter dated December 10, 2001 (Administrative Record No. AR-568.05), we notified Arkansas that the data form in Appendix D must provide an area for recording the date of sampling. By letter dated February 25, 2002 (Administrative Record No. AR-568.07), Arkansas revised Appendix D to include a place to record the date of sampling. We find that Arkansas' revision to Appendix D is acceptable and resolves the FWS's concern.
6. The FWS recommended that only native species be replanted on reclamation sites.
1. The FWS wondered when the predicted average yield per acre for each county was calculated. The FWS stated that if it was calculated an extended period from the present, the results might not be comparable to the results of the reference plots due to improved farming practices of today. The FWS stated that the operator should be encouraged to use reference plots if this is the situation.
2. The FWS recommended that the operator record the date the sample was taken on the sampling data sheets. The FWS pointed out that this is important since samples will be weighed both before and after drying, and the time of year that the samples were harvested needs to be taken into consideration. Also, since comparisons of the reference plots with the reclamation plots will be made, these samples should be collected at the same time.
However, Appendix G did not have a place to record the date of sampling. By letter dated December 10, 2001
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from the EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Under 30 CFR 732.17(h)(11)(i) and 884.15(a)(2), we requested comments on the amendment from the EPA (Administrative Record No. AR-568.01). The EPA did not respond to our request.
Under 30 CFR 732.17(h)(4) and 884.14(a)(6), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On September 6, 2001, we requested comments on Arkansas's amendment (Administrative Record No. AR-568.01). The Arkansas Historic Preservation Office responded on September 6, 2001 (Administrative Record No. AR-568.02), that because no known historic properties would be affected, it has no comment on the proposed program amendment.
Based on the above findings, we approve the amendment as submitted by Arkansas on August 13, 2001, and as revised on February 25, 2002.
We approve the regulations proposed by Arkansas with the provision that they be fully promulgated in identical form to the regulations submitted to and reviewed by OSM and the public.
To implement this decision, we are amending the Federal regulations at 30 CFR part 904, which codify decisions concerning the Arkansas program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Section 405(d) of SMCRA requires that the state have a program that is in compliance with the procedures, guidelines, and requirements established under the Act. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and AML reclamation plans, and program and plan amendments, because each program and plan is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Decisions on proposed AML reclamation plans and revisions submitted by a State or Tribe are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part 884 of the Federal regulations.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Section 405(d) of SMCRA requires State abandoned mine reclamation programs to be in compliance with the procedures, guidelines, and requirements of SMCRA.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Also, this rule does not require an environmental impact statement since agency decisions on proposed State and Tribal AML reclamation plans and revisions are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does 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. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval of amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the Illinois regulatory program (Illinois program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The Illinois Department of Natural Resources, Office of Mines and Minerals (Illinois or Department) proposed revisions to its regulations about regulatory coordination with requirements under other laws, permit processing requirements, permit fees, right of entry, performance bonds, revegetation timing, standards for measuring revegetation success of herbaceous wildlife vegetation, affected acreage, use of explosives, high capability lands, suspension or revocation of permits, and public and administrative hearings. Illinois also proposed to correct or remove outdated references in several regulations. Illinois revised its program to be consistent with the corresponding Federal regulations, to clarify ambiguities, and to improve operational efficiency.
May 17, 2002.
Andrew R. Gilmore, Director, Indianapolis Field Office. Telephone:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “. . . a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.”
By letter dated October 15, 2001 (Administrative Record No. IL-5073), Illinois sent us an amendment to its program under SMCRA (30 U.S.C. 1201
We announced receipt of the amendment in the November 27, 2001,
During our review of the amendment, we identified some editorial problems. We notified Illinois of these concerns by letter dated January 7, 2002 (Administrative Record No. IL-5075).
By letter dated March 6, 2002 (Administrative Record No. IL-5076), Illinois sent us revisions to its proposed program amendment. Because the revisions merely clarified certain provisions of Illinois' amendment, we did not reopen the public comment period.
Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below.
Any revisions that we do not discuss below concern nonsubstantive wording or editorial changes or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.
1. Illinois removed its current office address and added a reference to the “Department's Springfield office” at 62 IAC 1700.12(a), Petitions to Initiate Rulemaking; 62 IAC 1780.21(a) and 1784.14(a), Hydrologic Information; 62 IAC 1816.116(a)(2)(C), (5)(A) and 1817.116(a)(2)(C), (5)(A), Standards for Success of Revegetation; and 62 IAC 1846.17(b)(1), Procedure for Assessment of Individual Civil Penalty. Illinois made these changes so the regulations would not have to be corrected because of future address changes.
The proposed changes do not alter the requirements of these previously approved provisions in the Illinois regulations. Therefore, we find that they will not make Illinois' regulations less effective than the corresponding Federal regulations.
2. Illinois made minor wording changes, corrected citation references, and simplified its use of numbers in 62 IAC 1700.11, Applicability; 62 IAC 1700.12, Petitions to Initiate Rulemaking; 62 IAC 1773.12, Regulatory Coordination with Requirements under Other Laws; 62 IAC 1773.13, Public Participation in Permit Processing; 62 IAC 1777.17, Permit Fees; 62 IAC 1780.21, Hydrologic Information; 62 IAC 1785.23, Minor Underground Mine Facilities; 62 IAC 1800.11, Requirement to File a Bond; 62 IAC 1816.41, Hydrologic Balance Protection; 62 IAC 1816.113, Revegetation Timing; 62 IAC 1816.116, Revegetation Standards for Success; 62 IAC 1816.117, Revegetation—Tree, Shrub, and Herbaceous Wildlife Vegetation; 62 IAC 1817.66, Use of Explosives—Blasting Signs, Warnings, and Access Control; 62 IAC 1817.116, Revegetation Standards for Success; 62 IAC 1817.117, Revegetation—Tree, Shrub, and Herbaceous Vegetation; 62 IAC 1825.14, Soil Replacement on High Capability Lands; 62 IAC 1843.13, Suspension or Revocation of Permits; 62 IAC 1846.17, Procedure for Assessment of Individual Civil Penalty; 62 IAC 1847.3, Permit and Related Administrative Hearings; and 62 IAC 1847.9, Bond Release Public Hearings.
Because these revisions do not change the meaning of Illinois' previously approved regulations, we find that they will not make Illinois' regulations less effective than the corresponding Federal regulations.
1. Illinois removed the language from 62 IAC 1773.12 that required the Interagency Committee to review permit applications and provide the Department with comments and recommendations for coordination with requirements under other specified laws and regulations. Illinois added language that requires the Department to provide for the coordination of review and issuance of permits with requirements under other specified laws and regulations. Illinois made these revisions because Illinois Public Act 90-0490 abolished the Interagency Committee through an amendment to 225 Illinois Compiled Statutes (ILCS) 720/1.05 in 1997. The amendment to 225 ILCS 720/1.05 also delegated all programmatic functions formerly performed by the Interagency Committee to the Department. The Interagency Committee was originally created to review permit applications and provide comments to the Department on protection of the hydrologic system, water pollution control, the reclamation plan, soil handling techniques, dams and impoundments, and postmining land use.
On November 21, 2001, we approved the amendment to 225 ILCS 720/1.05 because the Department had increased its technical expertise in all areas needed to perform the programmatic functions formerly performed by the Interagency Committee (66 FR 58371). Also, the Department has the authority under 225 ILCS 720/9.04 to delegate responsibilities, other than final action on permits, to other State agencies with the authority and technical expertise to carry out such responsibilities. For the same reasons, we find that Illinois' revised regulation at 62 IAC 1773.12 meets the requirements of and is no less effective than the counterpart Federal regulation at 30 CFR 773.5.
2. Illinois also deleted references to the “Interagency Committee” from 62
1. Illinois revised 62 IAC 1773.13(a)(1)(B) to require that the map or description of the proposed permit area published as part of the public notice advertising a permit, revision, or renewal application include the shadow area for underground mines. If the application includes a shadow area, the applicant must differentiate between the permit area and shadow area on the map or in the description. Illinois defines “shadow area” to mean “any area beyond the limits of the permit area in which underground mine workings are located.”
The counterpart Federal regulation at 30 CFR 773.6(a)(1)(ii) does not specifically require the applicant to include the area over underground workings on the map or in the description. However, by specifying only the minimum contents of the advertisement, the Federal regulation at 30 CFR 773.6(a)(1) allows regulatory authorities to require applicants to include in the advertisement any additional information that they consider necessary. Therefore, we find that Illinois' revision will not make 62 IAC 1773.13(a)(1)(B) less effective than the counterpart Federal regulation at 30 CFR 773.6(a)(1)(ii).
2. Illinois revised 62 IAC 1773.13(a)(2) to require the applicant to file an additional copy of any changes to the permit application with the Department. The Department will then forward the additional copy to the county clerk at the courthouse where the permit application is filed. The corresponding Federal regulation at 30 CFR 773.6(a)(2) requires the applicant to file any changes to the application with the public office at the same time the change is submitted to the regulatory authority. Accessibility to local residents is the intent behind this local filing requirement. We find that Illinois' revised regulation is no less effective than the Federal regulation in meeting this intent. Therefore, we are approving the revision to 62 IAC 1773.13(a)(2).
Illinois revised 62 IAC 1773.15(a)(1) by restructuring its existing requirements and adding a new provision at paragraph (a)(1)(B)(i) that requires the applicant to submit modifications to the Department within one year of being notified of the need for them. If the applicant does not submit the required modifications to the Department within one year, the Department will issue a written finding denying the application. The Department may issue an extension to this time limit if the applicant can demonstrate just cause for doing so. Examples of just cause include extended periods of illness, extreme inclement weather, acts of civil unrest, or other emergency situations.
Although there is no exact Federal counterpart to the new provision, the corresponding Federal regulation at 30 CFR 773.7(a) allows the regulatory authority discretion to establish a reasonable time for processing permits. Thus, we find that Illinois' revisions will not make 62 IAC 1773.15(a)(1) less effective that the corresponding Federal regulation.
Illinois restructured and redesignated the existing provisions at subsections (a) through (c) as new subsections (b) through (d). Illinois revised and redesignated existing subsection (d) as new subsection (e). Illinois then added a new provision at subsection (a). The new provision at subsection (a) and the revised provision at subsection (e) read as follows:
(a) After a permit application under 62 Ill. Adm. Code 1772 through 1785 has been deemed approvable, but before a permit is issued in accordance with 62 Ill. Adm. Code 1773.19, the Department shall notify the applicant in writing of the amount of fee required for the permit.
(e) Failure to submit permit fees within 1 year after notification of the required fee amount shall result in the application being deemed null and void. The Department may issue an extension to this time limit if the applicant can demonstrate just cause (
The Federal regulation at 30 CFR 777.17 requires a permit application to be accompanied by a fee determined by the regulatory authority. It also allows the regulatory authority to develop procedures for the method of payment. We find that the new provision at 62 IAC 1777.17(a) and the revised provision at 62 IAC 1777.17(e) are consistent with these Federal requirements.
Illinois removed a reference to planned subsidence operations from subsection (e). As revised, this subsection requires applicants, claiming to have valid existing rights to conduct surface coal mining operations within an area where mining is prohibited or limited, to submit specified information in their permit applications.
There is no Federal counterpart to Illinois regulation at 62 IAC 1778.15(e). However, we find that removal of the reference to planned subsidence operations from 62 IAC 1778.15(e) does not adversely affect other aspects of the Illinois program and is not inconsistent with the right of entry provisions of the Federal regulations at 30 CFR 778.15.
Illinois proposes to revise 62 IAC 1785.23(d)(4) by removing a reference to the “Interagency Committee” and adding a reference to “other state agencies.” The revised paragraph reads as follows:
Other state agencies deemed appropriate by the Department shall be given copies of the application and provided 30 days from the date of receipt to submit comments.
Illinois originally adopted 62 IAC 1785.23 to take into account the distinct differences, between surface and underground mining. This category of facilities, which includes air shafts, fan and ventilation buildings, small support buildings or sheds, access power holes, and other small structures, would be subject to an abbreviated permit application and review period on the basis that these types of structures have a very minimal impact on the land and the environment. There is no Federal counterpart to these previously approved provisions.
Illinois removed the reference to the “Interagency Committee” because Illinois Public Act 90-0490 abolished the Interagency Committee in an amendment to 225 ILCS 720/1.05. As discussed above in finding B.1, the
Illinois is revising 62 IAC 1800.11(a) to require the Department to notify a permit applicant in writing of the amount of bond required to ensure reclamation of the permit area. The permit applicant then has one year to submit a performance bond. The Department will consider the permit application null and void if the applicant does not submit the bond within the time specified. The Department may issue an extension of the time limit if the applicant can demonstrate just cause for doing so. Examples of just cause include extended periods of illness, extreme inclement weather, acts of civil unrest, or other emergency situations.
Although the Federal regulation at 30 CFR 800.11(a) does not include these provisions, we find that they are not inconsistent with the Federal requirements for filing a performance bond.
At 62 IAC 1800.40, Illinois reversed the order of the provisions in existing subsections (d) and (e) and revised them as discussed below.
1. Redesignated subsection (d) concerns the right that specified persons have to file objections to a proposed bond release. Illinois is revising this subsection by adding language to specify that these persons also have the right to file “a written request for hearing.” Illinois added this language to clarify that a public hearing must be requested.
Although the counterpart Federal regulation at 30 CFR 800.40(f) does not contain the proposed language, it does indicate that a hearing must be requested. Thus, we find that 62 IAC 1800.40(d) is no less effective than the counterpart Federal regulation.
2. Redesignated subsection (e) concerns the right that the permittee, the surety, and any person with an interest in collateral posted as a bond have to request a hearing if the Department disapproves an application for release of bond. Illinois revised this subsection to provide these persons with an opportunity to request an administrative hearing in accordance with the procedures of 62 IAC 1847.3. Currently, Illinois provides an opportunity for a public hearing.
The counterpart Federal regulation at 30 CFR 800.40(d) also provides these persons with an opportunity for a public hearing. However, Illinois' allowance for a formal administrative hearing will provide an increased level of due process for those persons most affected by a final decision to disapprove a bond release application. Therefore, we find that Illinois' regulation at 62 IAC 1800.40(e) is no less effective than the counterpart Federal regulation.
Illinois is adding a new provision at subsection (b) to establish a time frame for the planting of trees and shrubs. Illinois is requiring trees and shrubs to be planted within two years after replacement of the plant-growth medium. Illinois' regulations at 62 IAC 1816.117 and 1817.117 require that vegetation for areas to be developed for fish and wildlife habitat (including shelter belts), recreation, and forest products include tree and shrub populations and vegetative ground cover.
The counterpart Federal regulations at 30 CFR 816.113 and 817.113 concerning revegetation timing do not contain a specific time frame for the planting of trees and shrubs. However, Illinois' proposal would allow sufficient time for vegetative ground cover to become well established before the trees and shrubs are planted. By requiring that trees and shrubs be planted within two years, the provision ensures contemporaneous reclamation for areas to be developed for fish and wildlife habitat (including shelter belts), recreation, and forest products. Therefore, we find that a two-year time frame is reasonable for the planting of trees and shrubs. Thus the proposed provision at 62 IAC 1816.116 (b) and 1817.113(b) will not make Illinois' regulations less effective than the counterpart Federal regulations.
Illinois added new subsection (e) to its regulations at 62 IAC 1816.117 and 1817.117 to provide a standard for measuring revegetation success for areas reclaimed to herbaceous vegetation.
1. The first provision in new subsection (e) specifies that vegetative ground cover of approved species must not be less than required to achieve the approved postmining land use for areas where herbaceous vegetation plants are used for fish and wildlife habitat (including shelter belts) or recreation land uses. The herbaceous vegetation must also be adequate to control erosion, and must not be less than 70 percent during the last year of the responsibility period.
Although the Federal regulations at 30 CFR 816.116(b)(3)(iii) and 817.116(b)(3)(iii) do not contain specific standards for measuring the revegetation success of herbaceous vegetation, they do specify that vegetative ground cover must not be less than that required to achieve the approved postmining land use. In the preamble for the Federal regulations (48 FR 40152, September 2, 1983), we noted that the regulations were written in a general form because of the variation in natural ground cover conditions throughout the States. We further indicated that each State would either need to require the use of reference areas, to specify minimum levels of ground cover as a percentage of surface area, or to adopt some other acceptable standard. The additional standards proposed by Illinois are acceptable for determining revegetation success of herbaceous vegetative ground cover for fish and wildlife habitat (including shelter belts) and recreation land uses. Therefore, we find that this provision at 62 IAC 1816.117(e) and 1817.117(e) is no less effective than the counterpart Federal requirements for ground cover success.
2. Illinois also added a provision to subsection (e) that allows the Department to approve planting arrangements such as hedgerows, border plantings, clump plantings, shelterbelts, and open herbaceous areas, which increase diversity within wildlife areas, on a case-by-case basis before these areas are planted.
The Federal regulations at 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i) require minimum stocking and planting arrangements to be specified by the regulatory authority on the basis of local and regional conditions. Therefore, we find that the proposed provision will not make Illinois' regulations at 62 IAC 1816.117(e) and 1817.117(e) less effective than the Federal regulations.
Illinois revised 62 IAC 1816.190(b) to require that areas affected by auger mining must be shown on the annual affected acreage reports and maps.
There are no direct counterpart Federal regulations that require permittees to submit affected acreage reports and maps. However section 517(b)(1) of SMCRA provides that “the regulatory authority shall require any permittee to (A) establish and maintain appropriate records, * * * and (E) provide such other information relative to surface coal mining and reclamation operations as the regulatory authority deems reasonable and necessary.” Therefore, we find the proposed revision to 62 IAC 1816.190(b) would not make the Illinois regulations inconsistent with SMCRA or the Federal regulations.
Illinois revised 62 IAC 1817.64(c) by replacing the existing language with the following language:
(c) All blasting shall be conducted between sunrise and sunset unless nighttime blasting is approved by the Department based upon a showing by the operator that the public will be protected from adverse noise and other impacts. Protection from adverse noise may include alternatives to the audible warning requirement specified in Section 1817.66(b). The Department may specify more restrictive time periods for blasting.
As revised, 62 IAC 1817.64(c) contains substantively the same standards for the use of explosives as the counterpart Federal regulation at 30 CFR 817.64(c). Therefore, we find that Illinois' regulation is no less effective than the counterpart Federal regulation.
Illinois revised 62 IAC 1817.66(b) by removing the following sentence: “The requirement to supply daily notice may be fulfilled by the audible warning signals.”
As revised, 62 IAC 1817.66(b) is substantively identical to the counterpart Federal regulation at 30 CFR 817.66(b). Therefore, we find that Illinois' regulation is no less effective than the counterpart Federal regulation.
Illinois revised 62 IAC 1825.14(e)(2) to require permittees to do soil compaction alleviation on lands reclaimed to high capability standards unless it can be shown that the productivity standards of 62 IAC 1816.116(a)(3)(C) have been, or could be, met without compaction alleviation on areas reclaimed in a similar manner. Illinois' regulation at 62 IAC 1816.116(a)(3)(C) provides the productivity standards for revegetation success of cropland areas.
There are no direct Federal counterparts to Illinois' regulations for high capability lands. However, we find that the revisions proposed at 62 IAC 1825.14(e)(2) concerning soil compaction alleviation do not adversely affect other aspects of the Illinois program and are not inconsistent with the topsoil and subsoil provisions of the Federal regulations at 30 CFR 816.22 and 817.22.
Illinois revised 62 IAC 1843.13(c) by adding a new paragraph at (c)(3) that requires the Department to notify the surety or other bond holder in writing when it issues a show cause order to the permittee.
The counterpart Federal regulation at 30 CFR 843.13 does not contain this requirement. However, we find that notifying the surety or other bond holder of a show cause order is not inconsistent with any of the requirements of the counterpart Federal regulation.
Illinois revised 62 IAC 1847.3(a) to clarify that the procedures outlined in this section also apply to review of bond release decisions under 62 IAC 1847.9(i). Illinois also added a provision that provides that a request for hearing is deemed filed the day it is received by the Department. Illinois' regulation at 62 IAC 1847.3 consolidates the procedures for most of the formal reviews provided for in the Illinois program. Illinois' regulation at 62 IAC 1847.9 provides for a public hearing on applications for bond release. It allows persons who either filed written objections to the bond release or were a party to the public hearing to request an administrative hearing on the Department's final decision on the bond release application in accordance with the procedures of 62 IAC 1847.3.
The Federal regulations at 30 CFR 800.40 do not specifically provide for administrative hearings for decisions pertaining to bond release. However, the Federal regulations at 43 CFR 4.1280-4.1286 do allow appeals from Federal decisions that are not required by SMCRA to be determined by formal adjudication. Therefore, we find that allowing formal administrative hearings for decisions pertaining to bond release is not inconsistent with the Federal regulations. We also find that Illinois' provision concerning the filing date of a hearing request is consistent with the Federal filing requirements for documents initiating hearing proceedings at 43 CFR 4.1107(f).
Illinois revised 62 IAC 1847.9 to provide a public hearing for bond releases. Currently Illinois only provides an administrative hearing for bond releases in this section. The Department will use the provisions in this revised section for public hearings on proposed bond releases. The Department will serve each party who participated in the public hearing with the Department's final bond release decision. Then the participants may request an administrative hearing on the Department's final decision in accordance with the procedures in 62 IAC 1847.3.
The Federal regulation at 30 CFR 800.40 also provides for public hearings on proposed bond releases. The Federal regulations specify general provisions that States must include in their public hearing procedures, but allow the States discretion in how to implement these provisions. We find that Illinois' provisions for public hearing at 62 IAC 1847.9 are consistent with the Federal requirements at 30 CFR 800.40(f) and (g) for public hearings on proposed bond releases.
We asked for public comments on the amendment, but did not receive any.
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Illinois program (Administrative Record No. IL-5073A). The Natural Resources Conservation Service responded on November 8, 2001 (Administrative Record No. IL-5074), that it had no exception to any of the amendments.
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from the EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. IL-5073A). The EPA did not respond to our request.
Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On October 25, 2001, we requested comments on Illinois' amendment (Administrative Record No. IL-5073A), but neither responded to our request.
Based on the above findings, we approve the amendment as submitted by Illinois on October 15, 2001, and as revised on March 6, 2002.
We approve the regulations proposed by Illinois with the provision that they be fully promulgated in identical form to the regulations submitted to and reviewed by OSM and the public.
To implement this decision, we are amending the Federal regulations at 30 CFR part 913, which codify decisions concerning the Illinois program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does 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. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
Coast Guard, DOT.
Temporary final rule; change in effective period.
The Coast Guard is extending the effective period of the safety and security zones published on December 12, 2001. This change will extend the effective date of the temporary final rule from June 15, 2002, until September 15, 2002, allowing adequate time for the Coast Guard to develop a permanent rule. This rule will continue to prohibit vessels from entering into these prohibited zones unless authorized by the Captain of the Port, Providence, Rhode Island, or an authorized representative.
The amendment to § 165. T01-188 is effective May 17, 2002. Section 165.T01-188, added at 66 FR 64144, December 12, 2001, effective October 6, 2001 until June 15, 2002, is extended in effect until September 15, 2002.
Documents as indicated in this preamble are available for inspection and copying at Marine Safety Office Providence, 20 Risho Avenue, East Providence, Rhode Island between the hours of 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
LT David C. Barata, at Marine Safety Office Providence, at (401) 435-2335.
On December 12, 2001, we published a temporary final rule (TFR) entitled “Safety And Security Zones: High Interest Vessel Transits, Narragansett Bay, Providence River, and Taunton River, Rhode Island” in the
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3), the Coast Guard finds that good cause exists for not publishing an NPRM. The original TFR was urgently required to prevent possible terrorist strikes against high interest vessels within and adjacent to Rhode Island Sound, Narragansett Bay, and the Providence and Taunton Rivers. It was anticipated that we would assess the security environment at the end of the effective period to determine whether continuing security precautions were required and, if so, propose regulations responsive to existing conditions. We have determined the need for continued security regulations exists. The Coast Guard will utilize the extended effective period of this TFR to engage in notice and comment rulemaking to develop permanent regulations tailored to the present and foreseeable security environment within the Captain of the Port (COTP) Providence Zone.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Terrorist attacks against the World Trade Center in Manhattan, New York on September 11, 2001 inflicted catastrophic human casualties and property damage. The threat of terrorism remains high. We believe that high interest vessels continue to require a higher degree of security than was
This 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. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The sizes of the zones are the minimum necessary to provide adequate protection for high interest vessels and their crews, other vessels operating in the vicinity of high interest vessels and their crews, adjoining areas, and the public. The entities most likely to be affected are commercial vessels transiting the main ship channel en route the upper Providence River and Taunton River and pleasure craft engaged in recreational activities and sightseeing. The safety and security zones will prohibit any commercial vessels from meeting or overtaking a high interest vessel in the main ship channel, effectively prohibiting use of the channel. However, the zones will only be effective during the vessel transits, which will last for approximately three hours, and vessels may transit ahead or astern of the zones. In addition, vessels are able to safely transit around the zones while a vessel is moored or at anchor in Rhode Island Sound. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting high interest vessels, their crews, and the public. Approximately six high interest vessels have transited under these temporary regulations since October 6, 2001. In each case, commercial and recreational vessels have been able to safely transit around the zones with minimal disruption.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses and 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 rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the main ship channel in Narragansett Bay, Providence River, and the Taunton River at the same time as high interest vessels. The safety and security zones will not have a significant economic impact on a substantial number of small entities for several reasons. Small vessel traffic can pass safely around the area and vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the safety and security zones to engage in these activities. When a high interest vessel is at anchor, vessel traffic will have ample room to maneuver around the safety and security zones. Although this regulation prohibits simultaneous use of the channel, the outbound or inbound transit of a high interest vessel will last a maximum of three hours and marine advisories will be issued prior to transit of a high interest vessel. In addition, vessels may transit ahead or astern of the safety and security zones. While a high interest vessel is moored, commercial traffic and small recreational traffic may request to move through the safety and security zones with the patrol commander. Before the effective period, maritime advisories will be issued to users of the area.
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 rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization would be affected by this rule and you have questions concerning its provisions or options for compliance, please call LT David C. Barata, at (401) 435-2335. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520.).
We have analyzed this action under Executive Order 13132, Federalism, and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government having first provided the funds to pay those costs. This rule will not impose an unfunded mandate.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribe, 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.
The Coast Guard has considered the environmental impact of implementing
We have analyzed this 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping, Security Measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.04-1, 6.04-6 160.5; 49 CFR 1.46.
(b)
Department of Veterans Affairs.
Final rule.
This document amends VA's medical regulations by adding the following extended care services to the medical benefits package: noninstitutional adult day health care, noninstitutional geriatric evaluation, and noninstitutional respite care. Also, this document amends VA's medical regulations to establish provisions regarding copayments for extended care services. These actions implement provisions of the Veterans Millennium Health Care and Benefits Act.
Effective Date: June 17, 2002.
Daniel Schoeps, Geriatrics and Extended Care (114), at (202) 273-8540 for issues regarding the medical benefits package, and Nancy Howard, Revenue Office (174), at (202) 273-8198 for issues regarding copayments for extended care services. Both are officials in the Veterans Health Administration, 810 Vermont Avenue NW, Washington, DC 20420.
In a document published in the
We provided a 60-day comment period that ended December 3, 2001. We received five comments. The issues raised by the commenters are discussed below. Based on the rationale set forth in the proposed rule and this document, we are adopting the provisions of the proposed rule subject to clarifying changes and other changes discussed below.
One commenter indicated that the provisions regarding noninstitutional adult day health care and noninstitutional respite care should indicate that VA will pay for enrolled veterans through contract where services in VA facilities are not available. No changes are made based on this comment. VA's decisions whether to provide noninstitutional adult day health care and noninstitutional respite care by contract depend on many factors such as the availability of VA and contract services, the veteran's needs, and limitations in VA's statutory authority (38 U.S.C. 1703, 1720B, and 8153). Within these limitations, VA will attempt to provide this care by contract where it is not available in VA facilities.
The Veterans Millennium Health Care and Benefits Act (Pub.L. 106-117) established provisions regarding copayments for extended care services provided to veterans by VA. These provisions are set forth at 38 U.S.C. 1710B.
The final rule states that, with certain exceptions, as a condition of receiving extended care services, a veteran must agree to pay VA a copayment. This restates statutory provisions at 38 U.S.C. 1710B. The final rule provides that the following extended care services are subject to the corresponding copayment amount per day:
(i) Adult day health care—$15.
(ii) Domiciliary care—$5.
(iii) Institutional respite care—$97.
(iv) Institutional geriatric evaluation—$97.
(v) Non-institutional geriatric evaluation—$15.
(vi) Non-institutional respite care—$15.
(vii) Nursing home care—$97.
One commenter asserted that the copayment for adult day health care should be $5 to $7 per day based on her conclusion that the $15 amount would be more than some would be able to pay. One commenter noted that domiciliary care “is restricted to veterans with very low incomes” and asserted that the proposal to charge $5 per day is too high. Three commenters expressed concern about whether low-income veterans would forgo nursing home care because of the $97 copayment amount per day. No changes are made based on these comments. Statutory provisions at 38 U.S.C. 1710B require that VA establish copayment amounts for extended care services. Under the final rule a veteran has no copayment obligation for the first 21 days of extended care services in any 12-month period from the date extended care services began. Further, for each
If a veteran has been receiving extended care services for 180 days or less, “available resources” means the sum of the income of both the veteran and the veteran's spouse minus the sum of the veterans allowance and the spousal allowance. If the veteran has been receiving extended care services for 181 days or more, liquid assets and fixed assets would be included in “available resources”. Expenses are included in the veterans allowance if the veteran has been receiving extended care services for 180 days or less, the veteran is receiving only adult day health care or other noninstitutional care, or the veteran has a spouse or dependents residing in the community (not institutionalized).
This formula is designed to ensure that veterans institutionalized for 180 days or less will have the means to return home and that their resources are not depleted due to the requirement to make copayments.
One commenter particularly had concerns about veterans in nursing homes with incomes between $9,556 and $24,000. The commenter suggested that VA establish a sliding scale that would require full copayments for only those with income above $24,000. No changes are made based on these comments. VA statistics indicate that the average daily copayment for those receiving nursing home care provided by VA would be approximately $14. The average daily copayment for those in the income range mentioned by the commenter would be less than $14.
One commenter requested that we provide examples of copayment calculations for a single veteran and a veteran with a spouse. Accordingly, we offer the following examples:
There would be no copayment for the first 21 days of care. For the next 169 days the available resources used in determining the copayment would be the income of the veteran minus the veterans allowance. During this time period, the veterans allowance includes living expenses.
After 180 days of nursing home care, the available resources used in determining the copayment would be the sum of the veteran's income and liquid and fixed assets minus the veterans allowance. During this time period, the veterans allowance does not include living expenses. The veteran's fixed and liquid assets would be reduced each month by the amount of the copayment amount that is not covered by the veteran's income after the veterans allowance is subtracted.
There would be no copayment for the first 21 days of care. For the next 169 days the available resources used in determining the copayment would be the income of the veteran and spouse minus the veteran's and spouse's deductible expenses minus the veterans and spousal allowance. On the 181st day of nursing home care, the available resources used in determining the copayment would be the sum of the veteran and spousal income and the liquid and fixed assets (excluding the primary residence of the spouse and one vehicle) minus the veteran's and spouse's deductible expenses minus the veterans and spousal allowance. Thereafter, the fixed and liquid assets would be reduced each month by the copayment amount that is not covered by the veteran and spousal income after the allowances (which include expenses) are subtracted.
The final rule provides that veterans are not subject to the copayment requirements if their annual income (determined under 38 U.S.C. 1503) is less than the amount in effect under 38 U.S.C. 1521(b). One commenter asserted that this exemption should be changed to provide a different formula with an increased amount. No changes are made based on this comment. We have no authority to change the statutory formula.
As noted above, a veteran would be obligated to pay the copayment only to the extent the veteran and the veteran's spouse have “available resources.” As proposed, “available resources” include IRA's and 401K's. One commenter asserted that IRA's and 401K's should not be included if they are subject to penalty if withdrawn early. No changes are made based on this comment. We see no reason for treating IRA's and 401K's differently from other available assets of the veteran. In addition, just because VA considers these investments does not require veterans to withdraw the money and incur the penalty. Exempting assets that are subject to a penalty for early withdrawal would encourage veterans to shelter their assets in these investments. Further, treating IRA's and 401K's differently from other assets would create an undue administrative burden.
The final rule provides that “[a]dult day health care is a therapeutic outpatient care program that provides medical services, rehabilitation, therapeutic activities, socialization, nutrition and transportation services to disabled veterans in a congregate setting.” One commenter asserted that the word “provides” should be changed to “provides or makes available” to ensure that the reader would understand that VA may obtain such care by contract. No changes are made based on this comment. The final rule at § 17.111(a) already covers this matter by stating that the extended care services are to be provided to veterans by VA “either directly by VA or paid for by VA.” The commenter also asserted that the term “medical services” should be defined. No changes are made based on this comment. The definition of adult day health care was included merely to distinguish it from other types of extended care services and not to establish the parameters of medical services provided. The overall parameters of medical services provided by VA are specified in the Medical benefits package which is set forth at 38 CFR 17.38. The commenter further questioned whether transportation and rehabilitation services are included in VA contracts for adult day health care services. In response, we note that they are included.
The proposed rule provided that a veteran receiving extended care services must submit to VA, among other things, a report of a change in income within 10 days of the change. One commenter asserted that the 10-day period should be extended to 30 to 45 days based on the further assertion that the veteran would not know how much to report until the “increase shows in a check.” We intended that the 10-day period begin when the veteran received the income. Accordingly, we have clarified the final rule to reflect this concept.
One commenter expressed concern regarding whether VA would provide assistance to those needing help in preparing forms and documentation under the final rule. No changes are made based on this comment. VA has individuals available at VA medical facilities to help veterans prepare such forms and documentation.
One commenter questioned whether VA has appeal procedures that would apply if a veteran were denied services. No changes are made based on this comment. We have established voluntary reconsideration procedures at 38 CFR 17.133. Further, veterans may appeal VA decisions regarding the provision of extended care services to the Board of Veterans' Appeals and the U.S. Court of Appeals for Veterans Claims.
The collection of information contained in the notice of the proposed rulemaking was submitted to the Office of Management and Budget (OMB) for review in accordance with the Paperwork Reduction Act (44 U.S.C. 3501-3520).
Under the provisions of § 17.111(e), a veteran who wishes to receive extended care services must apply by submitting a completed VA Form 10-10EC and documentation requested by the Form to a VA medical facility. VA Form 10-10EC is set forth in full at § 17.111(g). Except for those exempted under § 17.111(f), this information is needed to determine whether the veteran's financial circumstances require a copayment, and, if so, the amount of that copayment obligation. Moreover, a veteran must submit certain updated information to a VA medical facility at specified times following the initial request for an episode of extended care services, such as after a break in provision of extended care services for more than 30 days or when changes in the veteran's financial circumstances might change the copayment obligation.
Interested parties were invited to submit comments on the collection of information. However, no comments were received. Nevertheless, changes to the VA Form 10-10EC published in the
The portion of the form concerning fixed assets, liquid assets, expenses, and other income are changed for purposes of clarification. Also, the consent portion of the form has deleted the authorization language to release substance abuse/sickle cell anemia/HIV medical records because, under 38 U.S.C. 4132, another specific consent form is necessary to authorize release of such records.
OMB has approved this information collection under control number 2900-0629. VA is not authorized to impose a penalty on persons for failure to comply with information collection requirements which do not display a current OMB control number, if required.
The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing 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 in any given year. This rule would have no consequential effect on State, local, or tribal governments.
This document has been reviewed by the Office of Management and Budget under Executive Order 12866. The projected cost estimate for this final rule is $25,425,282 for nursing home care, $3,397,862 for adult day health care, and $6,679,916 for home respite care, for a total annual cost of $35,503,060.
The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. This amendment would not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance numbers for the programs affected by this document are 64.005, 64.007, 64.008, 64,009, 64.010, 64.011, 64.012, 64.013, 64.014, 64.015, 64.016, 64.018, 64.019, 64.022, and 64.025.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
1. The authority citation for part 17 continues to read as follows:
38 U.S.C. 501, 1721, unless otherwise noted.
A. In paragraph (a)(1), removing “VA hospital and outpatient care” and adding, in its place, “the ‘medical benefits package’ set forth in § 17.38”.
B. In paragraphs (a)(2) and (a)(3), removing “hospital and outpatient”.
C. In paragraph (b)(3), removing “hospital and outpatient” and adding, in its place, “that”.
A. In paragraphs (a), (b), (c), (e), (g), (h), and (i), removing “hospital and outpatient”.
B. In paragraph (f), removing “VA hospital and outpatient care” and adding, in its place, “care provided for in the ‘medical benefits package ’.
A. Revising paragraph (a) introductory text.
B. Revising paragraph (a)(1)(xi).
C. Revising the authority citation at the end of the section.
The revisions read as follows:
(a) Subject to paragraphs (b) and (c) of this section, the following hospital, outpatient, and extended care services constitute the “medical benefits package” (basic care and preventive care):
(1) * * *
(xi)(A) Hospice care, palliative care, and institutional respite care; and
(B) Noninstitutional geriatric evaluation, noninstitutional adult day health care, and noninstitutional respite care.
(a)
(b)
(i) Adult day health care—$15.
(ii) Domiciliary care—$5.
(iii) Institutional respite care—$97.
(iv) Institutional geriatric evaluation—$97.
(v) Non-institutional geriatric evaluation—$15.
(vi) Non-institutional respite care—$15.
(vii) Nursing home care—$97.
(2) For purposes of counting the number of days for which a veteran is obligated to make a copayment under this section, VA will count each day that adult day health care, non-institutional geriatric evaluation, and non-institutional respite care are provided and will count each full day and partial day for each inpatient stay except for the day of discharge.
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(d)
(2) For purposes of determining available resources under this section:
(i)
(ii)
(iii)
(A) Real property and other non-liquid assets; except that this does not include—
(
(
(
(
(
(
(
(iv)
(v)
(vi)
(3) The maximum amount of a copayment for any month equals the copayment amount specified in paragraph (b)(1) of this section multiplied by the number of days in the month. The copayment for any month may be less than the amount specified in paragraph (b)(1) of this section if the veteran provides information in accordance with this section to establish that the copayment should be reduced or eliminated.
(e)
(i) At the time of initial request for an episode of extended care services,
(ii) At the time of request for extended care services after a break in provision of extended care services for more than 30 days, and
(iii) Each year at the time of submission to VA of VA Form 10-10EZ.
(2) When there are changes that might change the copayment obligation (i.e., changes regarding fixed assets, liquid assets, expenses, income (when received), or whether the veteran has a spouse or dependents residing in the community), the veteran must report those changes to a VA medical facility within 10 days of the change.
(f)
(1) A veteran with a compensable service-connected disability,
(2) A veteran whose annual income (determined under 38 U.S.C. 1503) is less than the amount in effect under 38 U.S.C. 1521(b),
(3) Care for a veteran's noncompensable zero percent service-connected disability,
(4) An episode of extended care services that began on or before November 30, 1999,
(5) Care authorized under 38 U.S.C. 1710(e) for Vietnam-era herbicide-exposed veterans, radiation-exposed veterans, Persian Gulf War veterans, or post-Persian Gulf War combat-exposed veterans,
(6) Care for treatment of sexual trauma as authorized under 38 U.S.C. 1720D, or
(7) Care or services authorized under 38 U.S.C. 1720E for certain veterans regarding cancer of the head or neck.
(g) VA
Environmental Protection Agency (EPA).
Final rule.
EPA is amending 40 CFR part 180 to remove time-limited tolerances for several pesticides that were originally established to support emergency exemptions issued under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). These time-limited tolerances are being removed from 40 CFR part 180 because they have since expired or because permanent tolerances have been established for the pesticide and commodity covered by the time-limited tolerance. The expired time-limited tolerance is obsolete, while the unexpired time-limited tolerance covered by a permanent tolerance is duplicative. In either case, the time-limited tolerance is unnecessary and is being removed with this final rule to ensure that the regulatory listings of tolerances is properly updated.
This rule is effective May 17, 2002. Objections and requests for hearings, identified by docket control number OPP-2002-0037, must be received by EPA on or before July 16, 2002.
Written objections and hearing requests may be submitted by mail, in person, or by courier. Please follow the detailed instructions for each method as provided in Unit I.C. of the “SUPPLEMENTARY INFORMATION” section. To ensure proper receipt by EPA, your objections and hearing requests must identify docket control number OPP-2002-0037 in the subject line on the first page of your response.
Robert Forrest, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-9376; and e-mail address: forrest.robert@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
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 the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
Although section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act (FQPA), allows any person to file an objection or request a hearing when the Agency issues a final tolerance action under section 408, EPA does not expect that anyone will file an objection or request a hearing for this particular rule because the tolerances being revoked here are unnecessary duplicates of a permanent tolerance that remains in place or are obsolete by their own terms. If, for some reason, anyone wishes to file an objection or request for a hearing under section 408(g), please follow the EPA procedural regulations which govern the submission of objections and requests for hearings that appear in 40 CFR part 178. Note that the period for filing objections is now 60 days, rather than 30 days.
This final rule is issued pursuant to section 408(e) of FFDCA, as amended by the FQPA (21 U.S.C. 346a(e)). Section 408 of FFDCA authorizes the establishment of tolerances, exemptions from the requirement of a tolerance, 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 tolerance exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated” under section 402(a) of the FFDCA. If food containing pesticide residues is found to be adulterated, the food may not be
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because the actions taken in this final rule represent technical corrections to the regulations and do not involve substantive Agency action.
The removal of an expired time-limited tolerance from 40 CFR part 180 represents a simple correction of the regulations, and does not involve any substantive Agency action. The expiration date for the time-limited tolerance is set when the Agency issues the final rule that originally establishes, or a subsequent final rule that amends, the specific time-limited tolerance. Once that time-limited tolerance expires, the associated listing in 40 CFR part 180 is obsolete and must be removed to reflect that expiration.
The revocation of an unexpired time-limited tolerance from 40 CFR part 180, however, represents a substantive Agency action. In this case, that action is appropriate because the Agency's subsequent establishment of a permanent tolerance for the same pesticide chemical and commodity that was covered by the time-limited tolerance, causes the time-limited tolerance to become obsolete. Although the time-limited tolerance would expire by its own terms and become obsolete, the Agency is removing these tolerances today to eliminate an unnecessary duplication in the regulations.
For these reasons, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).
For each pesticide chemical and commodity combination listed below, EPA previously established a time-limited tolerance, under section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996 (Public Law 104-170). EPA established the tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. These time-limited tolerances are being removed from 40 CFR part 180 today because they have since expired or because permanent tolerances have since been established making these time-limited tolerances obsolete or unnecessary.
The time-limited tolerances for the following pesticide chemicals on specific commodities are being removed from 40 CFR part 180 because the time-limited tolerances have expired, or are duplicative of a permanent tolerance that the Agency subsequently established for the pesticide and commodity covered by the time-limited tolerance. In either case, the time-limited tolerance is obsolete and no longer necessary:
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3.
4.
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This final rule removes obsolete or unnecessary time-limited tolerances that were previously established under FFDCA section 408.
The Office of Management and Budget (OMB) has exempted tolerance actions like this revocation from review under Executive Order 12866, entitled
Because the agency has made a good cause finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (see discussion in Unit II.B. of this preamble), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (RFA)(5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA)(Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA.
This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). This action will not have substantial direct effects
Nor does it require special considerations under Executive Order 12898, 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).
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act (PRA)(44 U.S.C. 3501 et seq.).
In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996).
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), 346(a) and 374.
(b) * * *
(b) * * *
(b) * * *
(b) * * *
(b) * * *
(b) * * *
(b) * * *
(b)* * *
Federal Retirement Thrift Investment Board.
Proposed rule with request for comments.
The Executive Director of the Federal Retirement Thrift Investment Board (Board) proposes to revise the Board's Uniformed Services Employment and Reemployment Rights (USERRA) regulations regarding Thrift Savings Plan (TSP) contributions and loan payments, and to update the definitions used in those regulations. The Executive Director also proposes to amend the Board's death benefit regulations to allow the spouse of a deceased participant to transfer a TSP death benefit payment to an eligible retirement plan or to the spouse's existing TSP account. Finally, the Executive Director proposes to amend the Board's loan regulations to explain that the Soldier's and Sailors' Civil Relief Act of 1940 allows a participant returning to civilian service from active duty military service to reduce to 6 percent the interest rate owed on a TSP loan for the period of missed TSP loan payments due to military leave.
Comments must be received on or before June 17, 2002.
Comments may be sent to Patrick J. Forrest, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. The Board's Fax number is (202) 942-1676.
Patrick J. Forrest on (202) 942-1661.
The Board administers the TSP, which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA have been codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services which is similar to cash or deferred arrangements established under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).
Section 4(a)(1) of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), codified at 5 U.S.C. 8351(b)(8) and 8432b, describes the rights to TSP benefits afforded to civilian TSP participants who are reemployed in civilian service or restored from a nonpay status to pay status following a release from military service, discharge from hospitalization related to that service, or other similar event. On June 9, 1999, the Board published a final rule in the
Current § 1620.42 explains that a participant can make up TSP contributions missed due to military service if he or she is reemployed or restored to pay status in the civilian service under USERRA. It provides that a participant can file a contribution election immediately when he or she returns to civilian service under USERRA, and does not have to wait for an Open Season to begin making current TSP contributions. Section 1620.42 does not place a time limit on making an immediate contribution election under USERRA. Under 5 CFR 1600.12(a)(1) and 1604.3(b), new civilian employees and service members can file a TSP contribution election any time within the first 60 days of their hiring or appointment, without waiting for a TSP Open Season. Experience has shown this to be an adequate time for making a contribution election. Therefore, the Executive Director proposes to amend § 1620.42 to adopt a 60-day time limit for the filing of contribution elections under USERRA.
The regulation at 5 CFR 1605.31, published by the Board in the
The repayment of a TSP loan is governed by FERSA, the Internal Revenue Code, and by the regulations issued by the Internal Revenue Service (IRS) and the Board. Section 414(u) of the Internal Revenue Code (26 U.S.C. 414(u)) establishes the Federal income tax rules relating to USERRA. Under section 414(u)(4) and the IRS regulations interpreting that provision (26 CFR 1.72(p)-1, Q&A-9), a retirement plan may suspend a participant's obligation to make loan payments during a period of military service.
Under the Board's current regulations, the TSP will declare a loan to be a taxable distribution if a participant separates from service without repaying the loan or is in nonpay status for more than one year. 5 CFR 1655.13(a)(1), (a)(2). A participant may be eligible to have the taxable distribution reversed if he or she is reemployed or restored to pay status under USERRA. 5 CFR 1620.45(b). If the participant is eligible to have the distribution reversed, the TSP will reinstate the loan so that the participant can resume loan payments, subject to limitations on the term of a
The Executive Director proposes to amend § 1620.45 to provide for the suspension of loan payments for a participant who enters nonpay status to perform military service beyond one year, thereby avoiding a taxable distribution. Interest will accrue on the loan during the period that payments are suspended. When the participant returns to pay status, the loan payments will resume and the period of military service will be added to the loan repayment period. Therefore, the participant or the employing agency must notify the TSP record keeper of the beginning and ending dates of military service.
Under the proposed amendment, the TSP will continue to close a loan account and declare a taxable distribution if a participant separates from government employment and does not repay the loan, or if the participant is in nonpay status for more than one year and the TSP does not receive documentation that the nonpay status is due to military service. However, if the participant in fact separated or entered nonpay status to perform military service, he or she can later request that the loan be reinstated when the participant is reemployed or returns to pay status under USERRA.
Current § 1620.45(c) allows a participant who is reemployed pursuant to USERRA one year to decide whether to reinstate a loan or to return a mandatory withdrawal that was paid out when the participant separated from civilian service. In analogous situations, where participants are separated from Federal service and later reinstated, TSP regulations give participants 90 days to decide whether to reinstate a loan or return a withdrawal.
The Executive Director also proposes an amendment to the Board's loan regulations which is unrelated to USERRA. The TSP's loan regulations were first published in the
The Executive Director also proposes to revise the definition section of the USERRA regulation, 5 CFR 1620.41. Specifically, the definitions “basic pay” and “leave without pay” are deleted because they are not used in the regulatory text. In addition, the definitions “current contributions” and “reemployed or reemployment” are simplified; the definition “separation or separated” is rewritten as “separate from civilian service” to conform to the usage in the proposed rule; and the definitions “retroactive period,” “retroactive period beginning date,” and “retroactive period ending date” are updated and condensed into one definition to reflect a recent amendment to FERSA allowing employees who are reemployed or returned to pay status immediately to begin making TSP contributions.
FERSA provides that a deceased participant's TSP account will be paid to his or her beneficiary or beneficiaries. 5 U.S.C. 8433(e) and 8424(d). The Board's regulations governing the payment of a TSP death benefit were published in the
Current § 1651.14(c) states that a deceased participant's spouse may transfer a TSP death benefit payment to an individual retirement account (IRA), but not to another eligible retirement plan. That provision is based on section 402(c)(9) of the Internal Revenue Code (26 U.S.C. 402(c)(9)), in effect before January 1, 2002. However, the Internal Revenue Code was amended effective January 1, 2002, to provide that a death benefit may be transferred to any eligible retirement plan described at 26 U.S.C. 402(c)(8).
Since the TSP itself is an eligible retirement plan, the Executive Director also proposes to permit the spouse of a deceased TSP participant to transfer a TSP death benefit payment from the deceased participant's account to the spouse's TSP account (if he or she has one). Proposed § 1651.14(c) explains how such a transfer can be requested.
Finally, the proposed rule amends §§ 1651.2, 1651.5, and 1651.14 to substitute the word “spouse” for the words “widow” and “widower.” This change conforms the terms used in the death benefit regulations to those used in TSP publications.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government.
I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act of 1980.
Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under § 1532 is not required.
Claims, Employment benefit plans, Government employees, Military personnel, Pensions, Retirement.
District of Columbia, Employment benefit plans, Government employees, Military personnel, Pensions, Retirement.
Employment benefit plans, Government employees, Pensions, Retirement.
Employment benefit plans, Government employees, Military personnel, Pensions, Retirement.
For the reasons set forth in the preamble, the Board proposes to amend 5 CFR chapter VI as follows:
1. The authority citation for part 1605 is revised to read as follows:
5 U.S.C. 8351, 8432a, and 8474(b)(5) and (c)(1).
Section 1605.14 also issued under Title II, Pub. L. 106-265, 114 Stat. 770.
Subpart D also issued under 5 U.S.C. 8432b(b)(4) and (i); Div. A, Title VI, sec. 661(b), Pub. L. 106-65, 114 Stat. 1654.
2. Section 1605.31 is revised to read as follows:
(a)
(b)
(1) The employing agency will use the contribution election on file for the employee at the time he or she separated or was placed in nonpay status. If an employee terminated TSP contributions within two months before entry into military service, he or she may make a retroactive election to resume contributions for the first open season following the termination. The employee may also make retroactive contribution elections for any open season that occurred during the period of military service, as described at 5 CFR 1620.42.
(2) The pay used to determine the amount of contributions eligible for makeup is the pay the employee would have earned had he or she remained continuously employed in the position held immediately before the separation or placement in nonpay status.
(3) If the employee contributed to a uniformed services TSP account during the period of military service, the amount of employee contributions available for makeup will be reduced by the total amount of employee contributions made to the uniformed services TSP account. (This includes contributions from basic pay, incentive pay, and special pay, including bonus pay.)
(c)
(1) The employee is entitled to receive the agency automatic (1%) contributions that he or she would have received had the employee remained in civilian service or pay status. Within 60 days of the employee's reemployment or restoration to pay status, the employing agency must calculate the agency automatic (1%) makeup contributions and report those contributions to the record keeper. After the contribution has been reported, the agency must submit lost earnings records for the contribution.
(2) An employee who contributed to a uniformed services TSP account during the period of military service is also immediately entitled to receive agency matching makeup contributions to his or her civilian account for the employee contributions to the uniformed services account that were deducted from his or her basic pay, subject to any reduction in matching contributions required by paragraph (c)(4) of this section. However, an employee is not entitled to receive agency matching makeup contributions on contributions that were deducted from his or her incentive pay or special pay, including bonus pay, while performing military service.
(3) An employee who makes up missed contributions is entitled to receive attributable agency matching makeup contributions (unless the employee has already received the maximum amount of matching contributions, as described in paragraphs (c)(2) and (c)(4) of this section).
(4) If the employee received uniformed services matching contributions, the agency matching makeup contributions will be reduced by the amount of the uniformed services matching contributions.
(d)
3. The authority citation for part 1620 continues to read as follows:
5 U.S.C. 8474(b)(5) and (c)(1).
Subpart C also issued under 5 U.S.C. 8440a(b)(7), 8440b(b)(8), and 8440c(b)(8).
Subpart D also issued under Pub. L. 104-106, sec. 1043(b), 110 Stat. 186, 434-5; and Pub. L. 101-508, sec. 7202(m)(2), 104 Stat. 1388.
Subpart E also issued under 5 U.S.C. 8432b(i) and Div. A, Title VI, sec. 661(b), Pub. L. 106-65, 114 Stat. 1654.
4. Section 1620.41 is revised to read as follows:
As used in this subpart:
5. Section 1620.42 is revised to read as follows:
(a)
(b)
(c)
(1) If the employee had a valid contribution election on file when he or she separated or entered nonpay status to perform military service, that election form will be reinstated for purposes of makeup contributions, unless the employee submits new contribution elections effective for any missed open season.
(2) An employee who terminated contributions within two months of entering military service will be eligible to make a retroactive contribution election for the first open season that occurs after the effective date that the contributions were terminated. This election may be made even if the termination was made outside an open season.
6. Section 1620.44 is amended by revising the last sentence to read as follows:
* * * The employing agency will follow the procedure described in § 1620.46(e) to have those funds restored.
7. Section 1620.45 is revised to read as follows:
(a)
(1) Interest will accrue on the loan balance during the period of suspension. When the employee returns to civilian pay status, the employing agency will resume the deduction of loan payments from the participant's basic pay and the TSP will reamortize the loan (which will include interest accrued during the period of military service). The loan repayment term will be extended by the employee's period of military service. Consequently, when the employee returns to pay status, the TSP record keeper must receive documentation to show the beginning and ending dates of military service.
(2) If the TSP does not receive documentation that the employee entered into nonpay status to perform military service and the period of missed loan repayments extends beyond one year, the loan will be closed and the outstanding loan balance (including accrued interest) will be declared a taxable distribution. However, the taxable distribution can be reversed in accordance with paragraph (c) of this section.
(b)
(c)
(1) An employee who received a post-employment withdrawal when he or she separated to perform military service can have a taxable distribution reversed only if the withdrawn amount is returned as described in paragraph (b) of this section;
(2) A taxable loan distribution can be reversed either by reinstating the loan or by repaying it in full. The TSP loan can be reinstated only if the employee agrees to repay the loan within the original loan repayment term plus the length of military service, and if, after reinstatement of the loan, the employee will have no more than two outstanding loans, only one of which is a residential loan; and
(3) The employee must notify the TSP record keeper of his or her intent to reverse a taxable loan distribution within 90 days of the date the employee returns to civilian service or pay status; if the employee is eligible to reverse a taxable loan distribution, the TSP record keeper will then inform the employee of the actions that must be taken to reverse the distribution.
(d)
8. The authority citation for part 1651 is revised to read as follows:
5 U.S.C. 8424(d), 8432(j), 8433(e), 8435(c)(2), 8474(b)(5) and 8474(c)(1).
9. Section 1651.1 is amended by adding a new definition, in alphabetical order, to read as follows:
10. Section 1651.2 is amended by revising paragraph (a)(2) to read as follows:
(a) * * *
(2) If there is no designated beneficiary, to the spouse of the participant in accordance with § 1651.5;
11. Section 1651.5 is amended by revising the section heading and the first sentence to read as follows:
For purposes of payment under § 1651.2(a)(2), the spouse of the participant is the person to whom the participant was married on the date of death. * * *
12. Section 1651.14 is amended by revising paragraph (c) to read as follows:
(c)
13. The authority citation for part 1655 is revised to read as follows:
5 U.S.C. 8433(g) and 8474; 50 U.S.C. App. 526.
14. Section 1655.7 is amended by revising paragraph (c) to read as follows:
(c) The interest rate calculated under this section remains fixed until the loan is repaid, unless the participant informs the TSP record keeper that he or she entered into active duty military service and requests that the interest rate on a loan issued before entry into active duty military service be reduced to an annual rate of 6 percent for the period of such service. The participant must provide the record keeper with the beginning and ending dates of active duty military service.
Small Business Administration (SBA).
Proposed rule.
This proposed rule would allow a Small Business Investment Company (SBIC) to assume control over a small business concern, without notice to the SBA and to retain such control for a period of up to five years, or longer with SBA's approval. The proposed rule would also allow an SBIC to sell equity securities in a portfolio concern to a competitor of that portfolio concern.
Comments must be received on or before June 17, 2002.
Written comments should be sent to Leonard W. Fagan, Investment Division, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416.
Harry Haskins, Deputy Associate Administrator, Investment Division, 202-205-6734.
The Small Business Investment Corrections Act of 2000, Public Law 106-554, Title IV, section 402, amended section 103(5)(A)(i) of the Small Business Investment Act (Act) to clarify that a small business concern controlled by venture capital firms, including licensed small business investment companies (SBICs), does not for that reason cease to qualify as independently owned and operated. The statute reads, “regardless of the allocation of control during the investment period under any investment agreement between the business concern and the entity making the investment.” (15 U.S.C. 662(5)(A)(i)).
This proposed rule simplifies SBA's present regulation governing control of a small business and brings it into conformity with the Act, as amended in 2000. It also removes a regulatory restriction on the right of an SBIC to sell securities of a small business to a competitor of that business.
The intent of the rule is to implement a statutory change designed to allow SBICs the freedom to operate in the fashion of modern venture capital investors. SBA intends through this rule to permit the type of control that a modern venture fund would exercise while developing an investment, yet avoid the control typical of a holding company operating a firm as a subsidiary and deriving profits through earnings and cash flow.
The legislative history indicates that Congress envisioned only the kind of control that a modern venture capital fund focusing on capital gains would exercise. The legislative history (H.Rpt. 106-520) states that Congress did not intend for SBICs to exercise the control typical of a holding company or a continuing business operation conducted through a subsidiary for the purpose of accruing earnings on an annualized or cash flow basis.
Proposed § 107.865(a) is a statement of general policy. It differs from the present regulation by broadly permitting SBICs to exercise control over a portfolio concern through ownership of voting securities, management agreements, voting trusts, majority representation on the board of directors, or any other means. The proposed rule also changes the definition of the “Investor Group”, those entities whose ownership interests are aggregated for the purpose of determining whether control exists. Under the current regulation, the Investor Group consists of all SBICs that invest in a portfolio company, even if there is no affiliation among them, and all of the SBICs' Associates as defined in § 107.50. The proposed rule defines the Investor Group as an SBIC and its Associates, but does not aggregate the interests of two or more unrelated SBICs. SBA believes that unrelated SBICs should have as much freedom to co-invest with one another as they do to co-invest with venture funds that are not SBICs.
The only restriction in proposed § 107.865(a) is a five-year limit on SBIC control. This will be measured from the initial assumption of control, regardless of interruptions in control. SBA considers five years sufficient time for a viable seed stage company to become an operating business, or to generally develop the investment in a portfolio concern prior to divestiture for gain. It should also suffice for the reversal of the declining fortunes of an operating business. Moreover, the vast majority of SBICs are organized as limited partnerships with a life span not much in excess of ten years.
The proposed rule retains § 107.865(b) with one clarification in the introductory text. Section 107.865(b) outlines the circumstances under which SBA will presume control over a small business for the purpose of determining when control begins or ends. The proposed language clarifies that this paragraph relates only to control based on ownership of voting securities. Control through other means, as specified in § 107.865(a), may still exist even if the conditions in paragraph (b) are not met.
The proposed rule retains § 107.865 (c), which sets forth rebuttals to the presumption of control based on ownership of voting securities.
Proposed § 107.865(d) allows extension of control over portfolio
SBA believes that an investment for venture capital purposes is based primarily on an expectation of capital gains resulting from the divestiture of equity investments or conversion of warrants. SBA does not believe that conducting the ongoing operations of a portfolio concern for the purpose of receiving regular income is consistent with venture capital investing.
As stated above, SBA believes five years is generally sufficient time for profitable and effective venture capital investing. Consequently, SBA will not allow control beyond five years, except in limited circumstances.
Proposed § 107.865(d) makes clear that an SBIC may provide additional financing to a concern it controls regardless of the provisions of § 107.730(a)(1).
The rule would remove § 107.865 (e) and (f) as unnecessary and would redesignate § 107.865(g) as § 107.865(e).
Section 107.885(b) requires an SBIC that controls a small business to obtain SBA's prior approval before selling the small business's equity securities to a competitor of the small business. SBA anticipates that SBICs may exit from an investment by a sale to a strategic investor. SBA believes control of such situations is best left to negotiations between the SBIC and the small business. Consequently, SBA proposes to remove § 107.885(b).
The Office of Management and Budget (OMB) did not review this proposed rule as a “significant” regulatory action under Executive Order 12866. The proposed rule implements technical corrections to the SBIC program. This proposed rule will not have an annual effect on the economy of $100 million or more, adversely affect the economy in a material way, create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, materially alter the budgetary impact of loan programs or other government programs, or raise novel legal or policy issues arising out of legal mandates or the President's priorities.
For purposes of Executive Order 12988, the SBA has determined that this proposed rule was drafted, to the extent practicable, in accordance with the standards set forth in section 3 of that order.
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, the SBA determines that this proposed rule does not have sufficient federalism implications warranting the preparation of a Federalism Assessment.
This proposed rule does not impose any new information collection requirements from SBA which require approval by OMB under the Paperwork Reduction Act, 44 U.S.C. Ch.35.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. § 603(a)) Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
This proposed rule directly affects all SBICs, of which there are currently 432. SBA estimates that approximately 75 percent of these SBICs are small entities. Therefore, SBA has determined that this proposed rule will have an impact on a substantial number of small entities.
However, SBA has determined that the impact on entities affected by the proposed rule will not be significant. The effect of the proposed rule will be to allow SBICs the flexibility to choose the optimal structure for their investments without having to notify or seek approval from SBA. SBA expects the impact of the proposed rule will be a reduction in the paperwork burden for SBICs. SBA asserts that the economic impact of the reduction in paperwork, if any, will be minimal and entirely beneficial to small SBICs. Accordingly, the Administrator of the SBA hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities. SBA invites comment from members of the public who believe there will be a significant impact either on SBICs, or on companies that receive funding from SBICs.
Investment companies, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, the Small Business Administration proposes to amend 13 CFR part 107 as follows:
1. The authority citation for part 107 continues to read as follows:
15 USC 681 et seq., 683, 687(c), 687b, 687d, 687g, and 687m.
2. In § 107.865, revise the section heading and paragraphs (a), (b) and (d) to read as follows:
(a)
(b)
(1) At least 50 percent of the outstanding voting securities, if there are fewer than 50 shareholders; or
(2) More than 25 percent of the outstanding voting securities, if there are 50 or more shareholders; or
(3) A block of at least 20 percent of the outstanding voting securities, if there are 50 or more shareholders and no other party holds a larger block.
(d)
3. Remove the existing § 107.865(e) and (f) and redesignate § 107.865(g) as § 107.865(e).
4. Amend 107.885 by removing paragraph (b) and removing the paragraph designation “(a)”.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Boeing Model 737-300, -400, -500, -600, -700, -700C, -800, -900; 747-400; 757; 767; and 777 series airplanes. This proposal would require modifying the static inverter by relocating resistor R170 of the static inverter bridge assembly. This action is necessary to prevent a standby static inverter from overheating, which could result in smoke in the flight deck and cabin and loss of the electrical standby power system. This action is intended to address the identified unsafe condition.
Comments must be received by July 1, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-12-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2002-NM-12-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Binh V. Tran, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2890; fax (425) 227-1181.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket 2002-NM-12-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket 2002-NM-12-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports that static inverters had overheated on several Boeing airplanes. In one incident, smoke entered the flight deck and the cabin, and the captain declared an emergency. The smoke was traced to the static inverter unit, a critical piece of equipment that converts battery power during a standby condition. The type of static inverter involved in this incident is used on the affected Boeing airplane models. Analysis conducted by the manufacturer indicates that the proximity of resistor R170 to capacitors C50 and C51 in the static inverter could lead to overheating and consequent damage or failure of those capacitors. The results of the analysis suggest that the combination of obstructed convection cooling and localized heat dissipation from resistor R170 resulted in sufficient energy to damage the adjacent capacitors. These conditions, if not corrected, could result in smoke in the flight deck and cabin and loss of the electrical standby power system.
The FAA has reviewed and approved Boeing Service Letters 737-SL-24-165, 747-SL-24-058, 757-SL-24-069, 767-SL-24-047, and 777-SL-24-028; dated October 3, 2000. The service letters describe procedures for modifying the static inverter by relocating resistor R170 of the static inverter bridge assembly and reidentifying the static inverter to indicate the new modification level. Accomplishment of the actions specified in the service letters is intended to adequately address the identified unsafe condition.
The service letters refer to Avionic Instruments Inc. Service Bulletin 1-002-0102-1000-24-24, dated July 19, 1999, as an additional source of service information for relocating R170 and reidentifying the static inverter.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service letters.
There are approximately 3,832 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,882 airplanes of U.S. registry would be affected by this proposed AD.
The cost impact discussed in ADs is based on assumptions that no operator has yet accomplished any of the proposed requirements, and that no operator would accomplish those actions in the future if the proposed AD were not adopted. However, the FAA has been advised that manufacturer warranty remedies are available for the cost of modified replacement parts and labor associated with accomplishing the actions specified by this proposed AD. Therefore, the economic cost impact of this proposed AD on U.S. operators may be minimal. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (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. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent a standby static inverter from overheating, which could result in smoke in the flight deck and cabin and loss of the electrical standby power system, accomplish the following:
(a) Within 18 months after the effective date of this AD: Modify the static inverter by relocating resistor R170 of the static inverter bridge assembly and reidentifying the static inverter to indicate the new modification level, in accordance with Boeing Service Letters 737-SL-24-165, 747-SL-24-058, 757-SL-24-069, 767-SL-24-047, and 777-SL-24-028; dated October 3, 2000.
The Boeing service letters refer to Avionic Instruments Inc. Service Bulletin 1-002-0102-1000-24-24, dated July 19, 1999, as an additional source of service information for the modification required by paragraph (a) of this AD.
(b) As of the effective date of this AD, no person may install, on any airplane, a static inverter having a part number listed in the applicability section of this AD, unless the static inverter has been modified in accordance with the requirements of this AD.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration, DOT.
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD), applicable to all Airbus Model A300 B2 and B4; A300 B4-600, B4-600R, and F4-600R (collectively called A300-600); A310; and certain Airbus Model A319; A320; A321; A330; and A340 series airplanes. That proposal would have required repetitive visual inspections of the striker and guide valve of the passenger door actuators and certain emergency door actuators for corrosion, and corrective action, if necessary. That proposal was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. This new action revises the proposed rule by adding a requirement to modify the striker mechanism of the emergency and passenger door actuators, which would terminate the repetitive inspections. The actions specified by this new proposed AD are intended to prevent corrosion of the emergency actuator mechanism, which could cause failure of the emergency actuator striker mechanism on the passenger or emergency doors, and lead to difficulty in opening the passenger or emergency doors during an emergency evacuation.
Comments must be received by June 11, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 96-NM-179-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, FAA, Transport Airplane Directorate, International Branch, ANM-116, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 96-NM-179-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 96-NM-179-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to all Airbus Model A300, A300-600, and A310 series airplanes; and certain Airbus Model A319, A320, A321, A330, and A340 series airplanes; was published as a notice of proposed rulemaking (NPRM) in the
Since the issuance of that NPRM, a production and retrofit modification has been developed for all models affected by the unsafe condition in the NPRM. Therefore, the applicability in this supplemental NPRM has been changed to exclude airplanes that have accomplished this modification.
Airbus has issued new service bulletins that provide procedures for modification of the striker mechanism of the passenger and emergency door actuators, which would eliminate the need for the repetitive inspections specified in the NPRM. Additionally, certain service bulletins referenced in the NPRM for doing the repetitive inspections and corrective action have been revised and are included in this supplemental NPRM as additional acceptable sources of service information for doing those actions.
Airbus has issued Service Bulletins A300-52-0173, Revision 01 (for Model A300 B2 and B4 series airplanes), A300-52-6061, Revision 01 (for Model A300 B4-600, B4-600R, and F4-600R series airplanes) (collectively called A300-600 series airplanes), and A310-52-2065, Revision 01 (for Model A310 series airplanes), all dated September 7, 2000; A330-52-3048, Revision 01 (for Model A330 series airplanes), and A340-52-4059, Revision 01 (for Model A340 series airplanes), both dated December 2, 1998; and A320-52-1094, Revision 02, dated April 7, 1999 (for Model A319, A320, and A321 series airplanes). The service bulletins describe procedures for modification of the striker mechanism of the passenger and emergency door actuators. The modification includes replacement of the existing copper diaphragm with a corrosion-resistant aluminum diaphragm and re-identification of the actuators. The service bulletins also describe procedures for a visual inspection and adjustment/test of the forward, mid, and aft dampers and the emergency operation cylinders, if necessary, after doing the replacement.
Airbus has revised Service Bulletins A300-52-0168, Revision 02, (for Model A300 B2 and B4 series airplanes), A300-52-6052, Revision 02 (for Model A300-600 series airplanes), and A310-52-2058, Revision 02 (for Model A310 series airplanes), all dated October 25, 1999. The service bulletins describe procedures for visually inspecting the striker and guide valve of the passenger door actuators for corrosion, cleaning and reinstalling the emergency actuator striker mechanism, and replacing the emergency actuator striker mechanism with a serviceable part.
The DGAC classified the service information described previously as mandatory and issued French airworthiness directives 1998-482-122(B) R1, dated April 21, 1999; 1999-410-294(B) R1, dated November 17, 1999; and 98-507-085(B), and 98-508-106(B), both dated December 16, 1998; in order to assure the continued airworthiness of these airplanes in France.
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One commenter asks that the FAA give credit for inspections done per the procedures in the MPD. The commenter states that the NPRM limits accomplishment of the tasks to the procedures outlined in the Airbus All Operators Telex (AOT) 52-12, Revision 1, dated May 9, 1996, which was referenced in the NPRM as the appropriate source of service information for the accomplishment of the inspections and corrective action for Model A319, A320, and A321 series airplanes. The commenter notes that the procedure in the AOT was added to the Airbus A320 Airplane Maintenance Manual in 1997, and became part of the approved Airbus MPD for the A320s. The commenter adds that the MPD task number is 521000-13-1, and it specifies a repetitive inspection interval of 36 months, which is the same inspection interval specified in the NPRM. The commenter asks that the NPRM reference the MPD and adds that airplanes that have already been inspected per the procedures in the MPD should be exempt from the initial 500-flight-hour inspection.
The FAA agrees with the commenter and will add a note to this supplemental NPRM as follows: “Inspections and corrective action accomplished prior to the effective date of this AD per Airbus A320 MPD, task number 521000-13-1, are considered acceptable for compliance with paragraphs (a) and (b) of this AD.” Subsequent notes have been renumbered accordingly.
Two commenters question the effectivity in the NPRM and note that the NPRM does not include terminating action for the repetitive inspections.
One commenter states that the part numbers for the units specified in the NPRM are interchangeable with earlier units having the same part numbers, as defined in the Airbus A319/A320 Illustrated Parts Catalog. The commenter notes that there is the possibility that affected units could be installed on airplanes that, according to the NPRM, operators would not have to do the proposed inspections. The commenter asks that the effectivity specified in the NPRM be changed to include all A319 and A320 series airplanes with an exemption for door bottle assembly part numbers at or beyond Modification 26015. The commenter adds that Airbus Service Bulletin A320-52-1094, dated March 11, 1997, provides a terminating action for the repetitive inspections, and recommends that it be included in the NPRM.
The second commenter notes similar concerns and adds that operators who do the inspections in the NPRM and subsequently do Airbus Modification 26015 per Airbus Service Bulletin A320-52-1094 and Ratier-Figeac Service Bulletin FE174-52-3, dated December 16, 1996, are not allowed to stop doing the repetitive inspections in the NPRM.
Per the first commenter's request for an exemption for door bottle assembly part numbers at or beyond Modification 26015, we have added a new paragraph (a) to this supplemental NPRM to clarify that airplanes on which the applicable modifications have been done are exempt from the requirements specified in this supplemental NPRM. We have also changed the applicability specified in the NPRM (as the modifications were moved to paragraph (a) of the supplemental NPRM), to specify all Airbus Model A300-600; A310; A319; A320; A321; A330; and A340 series airplanes. In regard to the statement that part numbers for the units specified in the NPRM are interchangeable with earlier units having the same part numbers, that is addressed in paragraph (e), “Spares,” of this supplemental NPRM.
In response to both commenters’ recommendation to add terminating action, the FAA has changed this supplemental NPRM to require accomplishment of terminating action per the revised service information. This terminating action addresses both of the commenters' concerns.
Since the issuance of the NPRM, the FAA has changed the manner in which it identifies the airplane models commonly referred to as “Airbus Model A300 and A300-600 series airplanes” to reflect the model designation specified on the type certificate data sheet. This supplemental NPRM has been revised to reflect the appropriate model designations for those airplanes.
Additionally, since issuance of the NPRM, Airbus Model A330 series airplanes have been added to the U.S. registry. This change is reflected in the Cost Impact section of this supplemental NPRM.
The FAA has clarified the proposed inspection requirement contained in the NPRM. Whereas the NPRM specified a visual inspection, the FAA has revised this supplemental NPRM to clarify that its intent is to require a detailed inspection. Additionally, a note has
Since these changes expand the scope of the original NPRM, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.
The FAA estimates that 127 Model A300 B2 and B4 and A300-600 series airplanes of U.S. registry would be affected by this proposed AD.
For these airplanes, it would take approximately 9 work hours per airplane to accomplish the proposed inspections, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed inspections on U.S. operators is estimated to be $68,580, or $540 per airplane, per inspection cycle.
It would take approximately 60 work hours per airplane to accomplish the proposed modification, at an average labor rate of $60 per work hour. Parts cost per airplane would be minimal. Based on these figures, the cost impact of the proposed modification on U.S. operators is estimated to be $457,200, or $3,600 per airplane.
The FAA estimates that 47 Model A310 series airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 6 work hours per airplane to accomplish the proposed inspections, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed inspections on U.S. operators is estimated to be $16,920, or $360 per airplane, per inspection cycle.
For these airplanes, it would take approximately 20 work hours per airplane to accomplish the proposed modification, at an average labor rate of $60 per work hour. Parts cost per airplane would be minimal. Based on these figures, the cost impact of the proposed modification on U.S. operators is estimated to be $56,400, or $1,200 per airplane.
The FAA estimates that 887 Model A319, A320, and A330 series airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 4 work hours per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators of these airplanes is estimated to be $212,880, or $240 per airplane, per inspection cycle.
For these airplanes, it would take approximately 80 work hours per airplane to accomplish the proposed modification, at an average labor rate of $60 per work hour. Parts cost per airplane would be minimal. Based on these figures, the cost impact of the proposed modification on U.S. operators is estimated to be $4,257,600, or $4,800 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
There are currently no affected Model A321 or A340 series airplanes on the U.S. Register. All of these airplanes included in the applicability of this proposed rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers it necessary to include these airplanes in the applicability of this proposed rule in order to ensure that the unsafe condition is addressed in the event that any of the subject airplanes are imported and placed on the U.S. Register in the future.
Should an affected Model A321 series airplane be imported and placed on the U.S. Register in the future, it would take approximately 8 work hours per airplane to accomplish the proposed inspections. Based on an average labor rate of $60 per work hour, the cost impact of the proposed inspections would be $480 per airplane, per inspection cycle.
It would take approximately 20 work hours per airplane to accomplish the proposed modification on a Model A321 series airplane. Parts cost per airplane would be minimal. Based on an average labor rate of $60 per work hour, the cost impact of the modification would be $1,200 per airplane.
Should an affected Model A340 series airplane be imported and placed on the U.S. Register in the future, it would take approximately 32 work hours per airplane to accomplish the proposed inspections. Based on an average labor rate of $60 per work hour, the cost impact of the proposed inspections would be $1,920 per airplane, per inspection cycle.
It would take approximately 80 work hours per airplane to accomplish the proposed modification on a Model A340 series airplane. Parts cost per airplane would be minimal. Based on an average labor rate of $60 per work hour, the cost impact of the modification would be $4,800 per airplane.
The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (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. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability
To prevent corrosion of the emergency actuator mechanism, which could cause failure of the emergency actuator striker mechanism on the passenger or emergency doors, and lead to difficulty in opening the passenger or emergency doors during an emergency evacuation, accomplish the following:
(a) Within 500 flight hours after the effective date of this AD, or within 36 months after the airplane's date of manufacture, whichever occurs later: Determine if Airbus Modification(s) 45090, 45155, 45197, 45904, 45905, 26015, 26211, 11549, or 12024, as applicable, has been done. If the applicable modification(s) has been done, no further action is required by this AD. If the applicable modification(s) has not been done, before further flight, do the inspections required by paragraph (b) of this AD.
(b) Perform the inspections required by paragraphs (b)(1) and/or (b)(2) of this AD, as applicable, in accordance with Airbus Service Bulletin A300-52-0168, Revision 02 (for Model A300 B2 and B4 series airplanes), A300-52-6052, Revision 02 (for Model A300-600 series airplanes), or A310-52-2058, Revision 02 (for Model A310 series airplanes), all dated October 25, 1999; A330-52-3038, Revision 01, dated December 2, 1996 (for Model A330 series airplanes); A340-52-4048, Revision 03, dated June 10, 1997 (for Model A340 series airplanes); or Airbus All Operator Telex (AOT) 52-12, Revision 1, dated May 9, 1996 (for Model A319, A320, and A321 series airplanes); as applicable. Repeat the inspections thereafter at intervals not to exceed 3 years:
(1) For Model A321, A330, and A340 series airplanes: Do a detailed inspection of the striker and guide valve of the emergency door actuators for corrosion.
(2) For all airplanes: Do a detailed inspection of the striker and guide valve of the passenger door actuators for corrosion.
For the purposes of this AD, a detailed visual inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
Additional service information regarding the required inspections on Airbus Model A300 B2 and B4, A300-600, and A310 series airplanes is provided in RATIER-FIGEAC Service Bulletin 701-5000-52-9, Revision 1, dated October 10, 1996.
(c) If any corrosion is found during any inspection required by paragraph (b) of this AD, before further flight, accomplish either paragraph (b)(1) or (b)(2) of this AD, in accordance with Airbus Service Bulletin A300-52-0168, Revision 02 (for Model A300 B2 and B4 series airplanes), A300-52-6052, Revision 02 (for Model A300-600 series airplanes), or A310-52-2058, Revision 02 (for Model A310 series airplanes), all dated October 25, 1999; A330-52-3038, Revision 01, dated December 2, 1996 (for Model A330 series airplanes); A340-52-4048, Revision 03, dated June 10, 1997 (for Model A340 series airplanes); or Airbus AOT 52-12, Revision 1, dated May 9, 1996 (for Model A319, A320, and A321 series airplanes); as applicable.
(1) Clean the corroded areas of the emergency actuator striker mechanism to restore proper function, and re-install the mechanism; and, within 18 months after the corrosion is found, replace the mechanism with a serviceable part; or
(2) Replace the emergency actuator striker mechanism with a serviceable part.
Inspections and corrective action done before the effective date of this AD in accordance with Airbus Service Bulletin A300-52-0168, dated December 4, 1996, or Revision 01, dated March 26, 1998; A300-52-6052, dated December 4, 1996, or Revision 01, dated March 26, 1998; or A310-52-2058, dated December 4, 1996, or Revision 01, dated March 26, 1998; are considered acceptable for compliance with the applicable actions specified in this amendment.
Inspections and corrective action accomplished prior to the effective date of this AD in accordance with Airbus A320 Maintenance Planning Document, task number 521000-13-1, are considered acceptable for compliance with paragraphs (b) and (c) of this AD.
(d) Within 36 months after the effective date of this AD: Modify the striker mechanism of the emergency and passenger door actuators (includes replacement of the existing copper diaphragm in the striker mechanism with an aluminum diaphragm and re-identification of the actuators) in accordance with Airbus Service Bulletin A300-52-0173, Revision 01, dated September 7, 2000 (for Model A300 B2 and B4 series airplanes); A300-52-6061, Revision 01, dated September 7, 2000 (for Model A300-600 series airplanes); A310-52-2065, Revision 01, dated September 7, 2000 (for Model A310 series airplanes); A330-52-3048, Revision 01, dated December 2, 1998 (for Model A330 series airplanes); A340-52-4059, Revision 01, dated December 2, 1998 (for Model A340 series airplanes); or A320-52-1094, Revision 02, dated April 7, 1999 (for Model A319, A320, and A321 series airplanes); as applicable.
(e) As of the effective date of this AD, no person shall install a passenger door or emergency door actuator on any airplane without first inspecting that actuator in accordance with paragraph (b) of this AD; and repairing, if necessary, in accordance with paragraph (c) of this AD.
(f) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Manager, International Branch, ANM-116.
(g) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in French airworthiness directives 1998-482-122(B) R1, dated April 21, 1999; 1999-410-294(B) R1, dated November 17, 1999; and 98-507-085(B) and 98-508-106(B), both dated December 16, 1998.
Federal Energy Regulatory Commission, DOE.
Notice organizing technical conference.
In Docket No. RM01-10-000, the Federal Energy Regulatory Commission proposed to promulgate new standards of conduct regulations
The conference will take place on May 21, 2002, starting at 9:30 a.m. Persons wishing to submit further comments following the conclusion of the conference must submit them by June 14, 2002.
The conference will be held at the Commission's offices at 888 First Street, NE., Washington, DC in the Commission's meeting room. File written comments on the proposed rulemaking with the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments should reference Docket No. RM01-10-000. Comments may be filed electronically or by paper (an original and 16 copies, with an accompanying computer diskette in the prescribed format requested).
Demetra E. Anas, Office of General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 208-0178, email: Demetra.Anas@ferc.gov.
This notice provides additional information concerning the May 21, 2002 technical conference to be held in this docket to discuss the proposed revisions to the gas and electric standards of conduct governing transmission providers and their energy affiliates.
The order of the discussion at the conference will follow the organization of the Staff Paper that was attached to the April 25th Notice: (1) The definition of energy affiliate; (2) application of the rules to the bundled sales function for retail native load; (3) the independent functioning requirement; (4) information disclosure rules; and (5) the posting of specified information, e.g., discount information. Each topic will be discussed for approximately one to one and one-half hour.
Those interested in participating in the discussion of particular topics should indicate their interest by May 15, 2002 by calling Demetra Anas at (202) 208-0178 or via e-mail to:
Attendees who want to propose alternatives to the regulatory text from the April 25, 2002 Staff Paper or to the Commission's Notice of Proposed Rulemaking should come prepared to share specific proposed language. Also, the participation of people familiar with the business operations of the transmission providers and their energy affiliates is particularly invited. Participants are encouraged to offer assessments of the quantitative impacts of the proposed rule and the benefits to be obtained by the proposed rule.
Procedures to file additional comments:
Interested persons may file additional comments on the issues discussed at the conference, or other matters relevant to this proceeding, including alternative proposals by June 14, 2002. Comments should include a one-page single spaced position summary. Comments may be filed either in paper format or electronically. Those filing electronically do not need to make a paper filing. For paper filings, the original and 14 copies of such comments should be submitted to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC, 20426 and should refer to Docket No. RM01-10-000.
Comments filed via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's website (
User assistance for electronic filing is available at 202-208-0258 or by E-mail to
Remote access to the conference:
The Capitol Connection patrons in the Washington, DC area will receive notices regarding the broadcast of the conference. It also will be available, for a fee, live over the Internet, via C-Band Satellite, and via telephone conferencing. Persons interested in receiving the broadcast, or who need further information, should contact David Reininger or Julia Morelli at the Capitol Connection (703-993-3100) as soon as possible or visit the Capitol Connection web site at
In addition, National Narrowcast Network's Hearing-On-The-Line service covers all FERC meetings live by telephone so that interested persons can listen at their desks, from their homes, or from any phone, without special
Questions about participating at the conference should be directed to: Demetra Anas, Office of General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 202-208-0178.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations relating to the reporting of payments of gross proceeds to attorneys. The regulations reflect changes to the law made by the Taxpayer Relief Act of 1997 (1997 Act). The regulations will affect attorneys who receive payments of gross proceeds on behalf of their clients and certain payors (for example, defendants in lawsuits and their insurance companies and agents) that, in the course of their trades or businesses, make payments to these attorneys. This document also provides notice of a public hearing on these proposed regulations.
Written and electronic comments must be received by August 15, 2002. Requests to speak (with outlines of topics to be discussed) at the public hearing scheduled for September 30, 2002, at 10 a.m., must be received by September 9, 2002.
Send submissions to: CC:ITA:RU (REG-126024-01), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 5 p.m. to: CC:ITA:RU (REG-126024-01), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit comments electronically by submitting comments directly to the IRS Internet site at
Concerning the proposed regulations, Nancy Rose (202) 622-4910; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Treena Garrett at (202) 622-7180 (not toll-free numbers).
The collection of information contained in this notice of proposed rulemaking has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1644.
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 assigned by the Office of Management and Budget.
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.
This document contains proposed amendments to the Income Tax Regulations (26 CFR Part 1) under sections 6041 and 6045 of the Internal Revenue Code (Code). These proposed amendments to the Income Tax Regulations would (a) revise existing §§ 1.6041-1 and 1.6041-3 and (b) add a new § 1.6045-5.
A new reporting requirement, section 6045(f), was added to the Code by section 1021 of the Taxpayer Relief Act of 1997 (1997-4 (Vol. 1) C.B. 1, 136). Section 6045(f) generally requires information reporting for payments of gross proceeds made in the course of a trade or business to attorneys in connection with legal services (whether or not the services are performed for the payor). No information return is required under section 6045(f) for the portion of any payment that is required to be reported under section 6041(a) (or that would be required to be reported under section 6041 but for the $600 limitation) or under section 6051. The 1997 Act also provides that the general exception in § 1.6041-3(q)(1) for reporting payments made to corporations does not apply to payments of attorneys' fees.
Proposed regulations under sections 6041 and 6045(f) were previously published in the
After considering all of the comments, the IRS and the Treasury Department have decided to amend and repropose the regulations under sections 6041 and 6045(f), incorporating the guidance in the 1999 proposed regulations with some modifications. All comments received in connection with the 1999 proposed regulations will continue to be considered in finalizing these reproposed regulations (the proposed regulations). The IRS and the Treasury Department welcome any additional comments from taxpayers on the issues discussed below or on other issues relating to section 6045(f).
Section 1.6045-5(b)(1) of the 1999 proposed regulations (the delivery rule) elicited numerous comments. The delivery rule required information reporting of payments delivered to a nonpayee attorney, if under the circumstances, it was reasonable for the payor to believe that the attorney received the check in connection with legal services. Most of the comments urged the IRS and the Treasury Department to eliminate the delivery rule for a variety of reasons.
First, commentators suggested that the benefits the IRS would derive from receiving information regarding payments of gross proceeds to nonpayee attorneys would be outweighed by the burdens payors would encounter in collecting and reporting that information. Several commentators stated that their automated information collection and processing systems cannot prepare returns for nonpayee recipients. Consequently, they would incur substantial costs to accommodate reporting to nonpayee attorneys, either by modifying those systems or by manually preparing information returns for nonpayee attorneys.
Second, commentators stated that the delivery rule creates the potential for unintentional noncompliance because
Other commentators stated that the delivery rule unnecessarily complicates the requirement to backup withhold on payments made to an attorney who does not provide a taxpayer identification number (TIN). Many commentators also argued that delivering a check to a nonpayee does not constitute “making a payment” to that person under section 6045(f) or other information reporting provisions of the Code.
Due to the substantial burdens that the delivery rule would impose on payors, the IRS and the Treasury Department have adopted the suggestion to eliminate it. Thus, the proposed regulations provide that a payment to an attorney, in the case of a payment by check, means a check on which the attorney is named as a sole, joint, or alternative payee.
Several commentators suggested that the proposed regulations define the term “payor” under section 6045(f). Specifically, these commentators suggested that the section 6041(a) payor standard should also be used under section 6045(f), principally for three reasons. First, the language in both Code sections regarding who is required to report is virtually identical, that is, a person engaged in a trade or business and making payments in the course of that trade or business. Second, using different standards could lead to confusion. Third, commentators from the banking and mortgage lending industry were concerned that they would incur substantial costs of reporting payments made to lawyer-owned title insurance companies and settlement attorneys unless the regulations under section 6045(f) adopted the section 6041(a) payor standard.
The IRS and the Treasury Department agree that defining the term payor would be helpful. The proposed regulations define a payor as a person who makes a payment if that person is an obligor on the payment, or the obligor's insurer or guarantor. For example, a payor includes (a) a person who pays a settlement amount to an attorney of a client who has asserted a tort, contract, violation of law, or workers' compensation claim against that person; and (b) the person's insurer if the insurer pays the settlement amount to the attorney.
The IRS and the Treasury Department believe that the payor standards under sections 6041 and 6045(f) should not be identical because the nature and the purpose of the reporting requirements under each Code section are different. The legislative history of the 1997 Act, describing the law regarding information reporting of payments to attorneys before enactment of section 6045(f), states that if “the payment [to the attorney] is a gross amount and it is not known what portion is the attorney's fee, no reporting is required on any portion of the payment.” H.R. Rep. No. 148, 105th Cong., 1st Sess. 474 (1997). The Committee Report then states that section 6045(f) “will have a positive impact on compliance with the tax laws by requiring additional information reporting.” H.R. Rep. No. 148, at 474 (1997). A specific concern was that there was no reporting by payors (and underreporting by recipients) of payments of judgments and settlements made by insurance companies to attorneys that yielded large legal fees. See Department of the Treasury,
The additional reporting that Congress contemplated, and about which the Treasury Department was concerned, will not occur if the section 6041 payor standard is used under section 6045(f). Generally under section 6041, a person who makes a payment on behalf of a third person reports the payment only if the first person exercises management or oversight in connection with, or has a significant economic interest in, the payment.
Section 6045(f)(2)(B) states that section 6045(f) “shall not apply to the portion of any payment that is required to be reported under section 6041(a) (or would be so required but for the $600 limitation contained therein) or section 6051.” The use of different standards under sections 6041 and 6045(f) for determining who is required to file and furnish an information return affects the scope of the exception to reporting in section 6045(f)(2)(B). For example, assume that a defendant's insurer, to settle a claimant's lawsuit for taxable damages, wrote a check for $100,000 jointly to the claimant and the claimant's attorney and that the insurer knew that the attorney's fees were $40,000. Under section 6045(f), the insurer is required to report the $100,000 payment to the attorney. The exception in section 6045(f)(2)(B) does not apply because the insurer has no information reporting obligation under section 6041 with respect to the payment to the attorney.
Some commentators suggested a very broad reading of the exception to reporting contained in section 6045(f)(2)(B). Under the approach suggested by these commentators, this exception would apply if the payment to the attorney is subject to reporting under section 6041 or section 6051 by any person. For example, under this view, if a claimant in a lawsuit is required to report under section 6041 the portion of a damage award that his attorney retained as a contingent fee, then the defendant's insurance company, which paid those damages to the claimant's attorney, would not report the payment under section 6045(f). The IRS and the Treasury Department believe, however, that Congress intended the exception in section 6045(f)(2)(B) to provide relief only to the person who is required (or would be so required but for the dollar limitation) to report the payment to the attorney under section 6041 or section 6051. First, a payor is best able to determine whether it is required to report a payment based on its relationship to the payment rather than that of an unrelated (and possibly adversarial) third party. Second, requiring a payor to determine whether
On a related matter, one commentator noted that some practitioners believe that if a payment (or portion of a payment) is reportable under section 6045(f), then under § 1.6041-1(a)(1)(ii) it is not subject to reporting under section 6041 with respect to another payee. This view contradicts Congress' purpose in enacting section 6045(f), which is to “have a positive impact on compliance with tax laws by requiring additional information reporting.” H.R. Rep. No. 148, at 474 (1997). Therefore, § 1.6041-1(a)(1)(ii) has been clarified to provide explicitly that the exception applies to a payment with respect to which information returns are required under section 6041(a) and another Code section (
Many commentators suggested that the statutory $600 annual threshold for reporting payments under section 6041 should also apply under section 6045(f). Many payors who are required to report payments under section 6045(f) also are required to report payments under section 6041. In many cases, payments under both Code sections are reported on Forms 1099-MISC. Commentators stressed that payors would incur substantial costs to report payments that aggregated less than $600 annually, because they would have to either modify their automated processing systems or manually prepare returns reporting these payments. They argued that this burden far outweighs any benefit to be derived from collecting information for the relatively few payments made to attorneys that do not aggregate at least $600 during a calendar year. In light of these circumstances, the proposed regulations adopt a $600 annual reporting threshold because such a threshold strikes a reasonable balance between the objectives of section 6045(f) and the potential burden of compliance.
Most commentators approved of using Form 1099-MISC to report payments under section 6045(f) because their existing automated information processing systems are programmed to complete this form. However, a few commentators suggested that, because Form 1099-MISC is used to report income payments, it should not be used to report payments of gross proceeds. Some of these commentators also noted that some payors had improperly reported gross proceeds payments in an income box on Form 1099-MISC.
Beginning in 2001, the Form 1099-MISC was revised to add a separate and distinctly labeled box for reporting gross proceeds payments made to attorneys. Therefore, payments under section 6045(f) will continue to be reported on Form 1099-MISC. However, so that the IRS can easily change to another form if the need arises, the proposed regulations do not specify the form to be used.
Some commentators believed that, for each reportable payment under section 6045(f), payors should be required to file and furnish a separate Form 1099 listing the name of the attorney's client. These commentators were concerned that attorneys would have difficulty reconciling payee statements containing aggregate annual payments with their other records, an exercise that might be necessary if their income tax returns were examined by the IRS. However, other commentators asserted that requiring such detailed payee statements would impose an enormous burden on payors. These commentators urged that providing such detailed information should be voluntary, and noted that many payors provide such information to payees upon request. On balance, the IRS and the Treasury Department believe that the potential burden on payors that would result if separate payee statements were made mandatory outweighs the potential benefit of such statements to payees. Accordingly, under the proposed regulations, payors may file either one Form 1099-MISC that aggregates annual payments or separate Forms 1099-MISC for each payment. However, further comments on this question are welcome.
Section 1.6045-5(b)(2)(i) of the 1999 proposed regulations provided that if more than one attorney is listed as a payee on a check, the information return is required to be filed with respect to the attorney who received the check (the payee-recipient rule). For some of the same reasons that the delivery rule was criticized, several commentators suggested that if more than one attorney's name is listed on a check, the payor should be required to issue an information return with respect to the first-listed attorney (the first-listed rule). In addition, one commentator suggested that where joint or multiple payees are listed on a check, the payor should be required to report with respect to each attorney listed as a payee on the check (the all-payee rule).
The IRS and the Treasury Department carefully considered whether the payee-recipient rule raises the same problems as the delivery rule and believe that it does not. Commentators' principal objection to the delivery rule was that their automated information reporting systems are designed to capture information about check payees, not mere addressees or deliverees. The payee-recipient rule, however, requires that the recipient of the check also be named as a payee and thus does not raise the same concerns as the delivery rule. The IRS and the Treasury Department considered and rejected the first-listed payee rule because it would result in no information reporting with respect to an attorney who receives the check and is not the first-listed payee attorney. Finally, the IRS and the Treasury Department considered and rejected the all-payee rule because, as between the two, the payee-recipient rule appears to be less burdensome for most payors. Therefore, the proposed regulations retain the payee-recipient rule. The IRS and the Treasury Department, however, request comments on the effectiveness of, and the relative burdens imposed by, each of these three approaches.
Many commentators suggested that the definition of the term legal services in § 1.6045-5(d)(2) of the 1999 proposed regulations was too broad. These commentators requested an exception to the section 6045(f) information reporting requirement in certain circumstances where they believed the specific payment bears little or no correlation to the taxable income of the attorney or the attorney's client. Specifically, they suggested exceptions to reporting for payments to payee attorneys who were acting as (i) settlement attorneys or title insurers in real estate transactions, (ii) executors or administrators of estates (for example, those receiving payments of life insurance proceeds), (iii) trustees of trusts (such as pension plans and bankruptcy estates), and (iv) administrators of qualified settlement funds described in § 1.468B-1.
Consistent with the language and purpose of section 6045(f), the IRS and the Treasury Department continue to believe that a broad definition of legal services is appropriate. However, it should be noted that other features of the proposed regulations, such as the elimination of the delivery rule, may provide a result equivalent to an exception in many cases. For example, the IRS and the Treasury Department understand that it is unusual for an attorney who is the executor or administrator of an estate to be named as the payee on a check. Similarly, in many bankruptcy situations the estate of the bankrupt, rather than the trustee, is the named payee. Further, under these proposed regulations, many payors will be able to avoid reporting under section 6045(f) simply by naming the attorney's client as payee on the check even if the check is delivered to the attorney's office. Finally, the proposed regulations provide that payments made to an attorney acting in the capacity as a settlement agent in connection with the closing of a real estate transaction are not subject to reporting under section 6045(f). The IRS and the Treasury Department believe that the flexibility provided by these rules should reduce the need for many of the requested exceptions from the term legal services. However, comments on additional exceptions where such flexibility is not practical are welcome.
The proposed regulations also provide a clearer and more objective standard for determining whether a payment made to a foreign attorney is subject to reporting under section 6045(f). Under the proposed regulations, a return of information is not required under section 6045(f) with respect to payments made to a nonresident alien individual, foreign partnership, or foreign corporation that does not engage in a trade or business in the United States and does not perform any labor or personal services in the United States. The proposed regulations provide that the rules provided in § 1.6041-4(a)(1) are used to determine whether a payment is subject to this exception. Thus, the payor makes this determination by obtaining from the payee a Form W-8, a Form W-9, or other documentation conforming in substance to those forms, or by relying on the presumptions provided under § 1.1441-1(b)(3).
Other commentators asked for exceptions for situations in which attorneys who, after collecting their fees for legal services rendered, continue to serve as mere clearinghouses or delivery conduits to their clients. For example, attorneys sometimes collect and disburse payments intact for: (1) A transient or homeless client; (2) a client whose address is intentionally not disclosed to the payee; or (3) a client who is entitled to recurring payments in satisfaction of the client's workers' compensation claim. In addition, sometimes a payor is required to make payments to third-party service providers through an attorney to monitor payor compliance, even though the attorney does not charge a separate fee for this service. The IRS and the Treasury Department have not adopted this suggested exception to the section 6045(f) reporting requirement, because it is too burdensome to require a payor to determine whether any portion of a specific payment is being retained by the attorney as a fee.
Therefore, the proposed regulations adopt, with a minor clarification, the definition of the term legal services used in the 1999 proposed regulations. Under the proposed regulations, the term legal services means all services related to, or supportive of, the practice of law performed by, or under the supervision of, an attorney. Including services that are related to, or supportive of, the practice of law in the definition of legal services continues the broad definition in the 1999 proposed regulations. It also clarifies that payments to an attorney for services that are clearly unrelated to the practice of law are not subject to reporting under section 6045(f). For example, a payment to an individual for refurbishing an antique automobile is not subject to reporting under section 6045(f) merely because that individual is a tax lawyer.
Some commentators suggested either eliminating the requirement for a payor to backup withhold on a payment made to an attorney who does not furnish a TIN or, if such withholding is required, permitting the withheld amounts to be credited to the account of the attorney's client. The IRS and the Treasury Department believe that payments to attorneys for legal services are reportable payments under section 3406(b)(3)(C), and thus are subject to the backup withholding requirements. Further, the following statement in the legislative history of section 6045(f) shows that Congress specifically intended payments to attorneys that are reportable under section 6045(f) to be subject to backup withholding:
Third, attorneys are required to promptly supply their TINs to persons required to file these information reports, pursuant to section 6109. Failure to do so could result in the attorney being subject to penalty under section 6723 and the payments being subject to backup withholding under section 3406.
Several comments were received regarding the examples in § 1.6045-5(f) of the 1999 proposed regulations. Commentators suggested that
Some commentators expressed concern that the examples imply that all damages in a lawsuit against an employer are back wages reportable under Forms W-2.
Some commentators stated that the examples did not provide sufficient guidance on the reporting of damages under sections 6041 and 6051. The IRS and the Treasury Department understand taxpayers' interest in additional guidance in this area, due in part to significant changes in the law under section 104(a)(2). However, regulations under section 6045(f) are not the appropriate place to address legal issues involving concerns under sections 6041 and 6051. Thus, these proposed regulations address issues under sections 6041 and 6051 only to the extent they are integral or closely related to providing guidance regarding section 6045(f).
Finally, in response to numerous requests, the 1999 proposed regulations have been expanded to provide additional examples of required reporting.
Section 1.6041-3(q) of the 1999 proposed regulations provided that payments to a corporation engaged in providing legal services did not qualify for the exception for reporting payments to corporations. These proposed
In response to several comments received concerning the amount of time needed to implement automated processing systems changes, the effective date of the regulations has been delayed. The regulations will apply to payments made during the first calendar year that begins at least two months after the date of publication of the final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. Chapter 5) does not apply to these regulations.
It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the facts that: (1) The time required to prepare and file a 2002 Form 1099-MISC is minimal (currently estimated at 16 minutes per form); and (2) it is not anticipated that, as a result of these regulations, small entities will have to prepare and file more than a few, at most, forms per year. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) that are submitted timely (in the manner described in the
A public hearing has been scheduled for September 30, 2002, beginning at 10 a.m. in the Auditorium on the Seventh Floor of the Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments must submit written comments and an outline of the topics to be discussed and the time to be devoted to each topic (a signed original and eight (8) copies) by September 9, 2002. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for reviewing outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these proposed regulations is A. Katharine Jacob Kiss, Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(a) * * *
(1) * * *
(ii) The payments described in paragraphs (a)(1)(i)(A) and (B) of this section shall not include any payments of amounts with respect to which an information return is required by, or may be required under authority of, section 6042(a) (relating to dividends), section 6043(a)(2) (relating to distributions in liquidation), section 6044(a) (relating to patronage dividends), section 6045(relating to brokers' transactions with customers), sections 6049(a) (1) and (2) (relating to interest), section 6050N(a) (relating to royalties), or section 6050P (a) or (b) (relating to cancellation of indebtedness) with respect to the same payee. For example, a person who pays $600 of taxable damages to a claimant and the claimant's attorney may be required to file an information return under section 6041 with respect to the claimant and another information return under section 6045(f) with respect to the claimant's attorney. In addition, notwithstanding anything in the preceding two sentences, payments to an attorney that are described in paragraph (a)(1)(i) of this section are reported under this section and not section 6045(f). For provisions relating to information reporting on payments to attorneys,
(q) * * *
(1) A corporation described in § 1.6049-4(c)(1)(ii)(A), except to a corporation for payments of attorneys' fees made after December 31, 1997, and except to a corporation engaged in providing medical and health care services or engaged in the billing and collecting of payments in respect to the providing of medical and health care services. * * *
(a)
(i) A portion of a payment is kept by the attorney as compensation for legal services rendered; or
(ii) Other information returns are required with respect to some or all of a payment under other provisions of the Internal Revenue Code and the regulations thereunder.
(2)
(i) The name, address, and taxpayer identification number (TIN) (as defined in section 7701(a)) of the payor;
(ii) The name, address, and TIN of the payee attorney;
(iii) The amount of the payment or payments (as defined in paragraph (d)(5) of this section); and
(iv) Any other information required by the Commissioner.
(3)
(b)
(ii)
(2)
(c)
(1) Payments of wages or other compensation paid to an attorney by the attorney's employer.
(2) Payments of compensation or profits paid or distributed to its partners by a partnership engaged in providing legal services.
(3) Payments of dividends or corporate earnings and profits paid to its shareholders by a corporation engaged in providing legal services.
(4) Payments made by a person to the extent that the person is required to report with respect to the same payee the payments or portions thereof under section 6041(a) and § 1.6041-1(a) (or would be required to so report the payments or portions thereof but for the dollar amount limitation contained in section 6041(a) and § 1.6041-1(a)).
(5) Payments made to a nonresident alien individual, foreign partnership, or foreign corporation that does not engage in a trade or business in the United States and does not perform any labor or personal services in the United States. For how a payor determines whether a payment is subject to this exception, see § 1.6041-4(a)(1).
(6) Payments made to an attorney in the attorney's capacity as the person responsible for closing a transaction within the meaning of § 1.6045-4(e)(3) for the sale or exchange of any present or future ownership interest in real estate described in § 1.6045-4(b)(2)(i) through (iv).
(d)
(1)
(2)
(3)
(4)
(5)
(e)
(f)
Employee C, who sues employer P for back wages, is represented by attorney A. P settles the suit for $300,000 that represents taxable wages under existing legal principles and writes a settlement check payable jointly to C and A in the amount of $200,000, net of income and FICA tax withholding. P delivers the check to A. A retains $100,000 of the payment and disburses the remaining $100,000 to C. P must file an information return with respect to A for $200,000 under paragraph (a)(1) of this section. P must also furnish an information return to C under section 6051 in the amount of $300,000.
C, who sues corporation P for damages on account of personal physical injuries, is represented by attorney A. P settles the suit for a $600,000 damage payment that is excludable from C's gross income under section 104(a)(2). P writes the $600,000 settlement check payable jointly to C and A and delivers the check to A. A retains $240,000 of the payment as A's attorney's fees and remits the remaining $360,000 to C. P must file an information return with respect to A for $600,000 under paragraph (a)(1) of this section.
C, a plaintiff in a suit for lost profits against corporation P, is represented by attorney A. P settles the suit for $300,000. A requests P to write two checks, one payable
Corporation P, a defendant in a suit for damages knows that C, the plaintiff, has been represented by attorney A throughout the proceeding. P settles the suit for $500,000. Pursuant to a request by A, P writes the $500,000 settlement check payable solely to C and delivers it to A at A's office. P is not required to file an information return under paragraph (a)(1) of this section with respect to A, because there is no payment to an attorney within the meaning of paragraph (d)(4) of this section.
Corporation P, a defendant, settles a lost profits suit brought by C, for $1,000,000 by paying a check naming C's attorneys, Y, A, and Z, as payees in that order. Y, A, and Z are not related parties. P delivers the payment to A's office. A deposits the check proceeds into a trust account and makes payments by separate checks to Y of $100,000 and to Z of $50,000, for their attorneys' fees. A also makes a payment by check of $550,000 to C. P must file an information return for $1,000,000 with respect to A under paragraphs (a)(1) and (b)(1)(i) of this section. A, in turn, must file information returns with respect to Y of $100,000 and to Z of $50,000 under paragraphs (a)(1) and (b)(2) of this section if A is not required to file information returns under section 6041 with respect to A's payments to Y and to Z.
Corporation P, a defendant, settles a suit brought by C for $1,000,000 of damages. C's attorney, A, did not furnish P with A's TIN. P is required to deduct and withhold tax from the $1,000,000 under section 3406(a)(1)(A) and paragraph (e) of this section. Therefore, P makes the payment by a $720,000 check naming C and C's attorney, A, as joint payees. P must also file an information return with respect to A under paragraph (a)(1) of this section in the amount of $1,000,000, as prescribed in paragraph (d)(5) of this section.
(i) Individual P agrees to purchase a house that P will use solely as a residence. P obtains a loan from lender L to finance a portion of the cost of acquiring the house. L disburses loan proceeds of $325,000 to attorney A, who is the settlement agent, by a check naming A as the sole payee. A, in turn, writes checks from the loan proceeds and from other funds provided by P to the persons involved in the purchase of the house, including a check for $800 to attorney B, whom P hired to provide P with legal services relating to the closing.
(ii) P, not L, is the payor of the payment to A under paragraph (d)(3) of this section. P, however, is not required to file an information return with respect to A under paragraph (a)(1) of this section because the payment was not made in the course of P's trade or business. Even if P made the payment in the course of P's trade or business, P would not be required to file an information return under section 6045(f) with respect to A because P is excepted under paragraph (c)(6) of this section.
(iii) A is not required to file an information return under paragraph (a)(1) of this section with respect to the payment to B because A is not the payor as that term is defined under paragraph (d)(3) of this section. Also A is not required to file an information return under paragraph (b)(2) with respect to the payment to B because A was listed as sole payee on the check it received from P. See section 6041 and its regulations for whether A or L must file information returns under that section. See section 6045(e) and § 1.6045-4 for whether A is required to file an information return under that section.
The facts are the same as in
Corporation P agrees to settle for $100,000,000 a class action lawsuit brought by attorney A on behalf of a claimant class. Pursuant to the settlement agreement and a preliminary order of approval by a court, A establishes a bank account in the name of Q Settlement Fund, which is a qualified settlement fund (QSF) under § 1.468B-1. A is also designated by the court as the administrator of the QSF. Corporation P writes a $100,000,000 check in 2003 to A, who deposits the check proceeds into the Q Settlement Fund. In 2004, the court approves an award of attorneys' fees of $35,000,000 for A. In 2004, Q Settlement Fund delivers a $35,000,000 check payable to A. P is required to file an information return under paragraph (a) of this section with respect to A for the year 2003 for the $100,000,000 payment it made to A. The Q Settlement Fund is required to file an information return under section 6041(a) and § 1.468B-2(l)(2) with respect to A for the year 2004 for the $35,000,000 payment it made to A.
Individual C files for bankruptcy under Chapter XIII of the Bankruptcy Code, 11 U.S.C. sections 1301-1330. Pursuant to a wage garnishment order, C's employer, P, withholds $800 from C's earnings. P remits a check for $800 payable to A, an attorney who was appointed by the United States Bankruptcy Court to act as the trustee of C's bankruptcy estate. P is required to file an information return under section 6045(f) with respect to the $800 payment it made to A.
(g)
(1) Section 6721 for failure to file a correct information return.
(2) Section 6722 for failure to furnish a correct payee statement.
(3) Section 6723 for failure to comply with other information reporting requirements (including the requirement to furnish a TIN).
(4) Section 7203 for willful failure to supply information (including a taxpayer identification number).
(h)
Office of Surface Mining Reclamation and Enforcement, Interior.
Advance notice of proposed rulemaking.
We are seeking comments on what types of financial guarantees will best ensure adequate funding for the treatment of unanticipated long-term pollutional discharges, including acid or toxic mine drainage (collectively referred to as AMD), that develop as a result of surface coal mining operations. Specifically, we are interested in views from all parties on how we can best address the proper level of treatment and number of years to use in calculating financial assurance amounts for AMD, appropriate financial mechanisms to cover treatment costs, and suggestions on appropriate enforcement in cases where financial assurance is not fully adequate for the long term, but AMD is still being treated. We also invite comment on
To ensure consideration, we must receive your comments on or before July 16, 2002.
You may mail or hand carry comments to the Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 101, 1951 Constitution Avenue, NW., Washington, DC 20240. You may also e-mail comments to
Ruth Stokes, Program Support Directorate, Office of Surface Mining Reclamation and Enforcement, on 202-208-2611.
Section 509(a) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act), requires that each applicant for a permit to conduct surface coal mining operations file a performance bond to guarantee compliance with all requirements of the Act and the permit. The Act specifies that the bond amount must reflect the probable difficulty of reclamation, considering a number of factors, one of which is hydrology. It also requires that the bond be sufficient to assure completion of the reclamation plan if the work had to be performed by the regulatory authority.
Paragraphs (b) through (d) of section 509 of the Act specifically recognize surety bonds, self-bonds, cash, negotiable Federal or State bonds, and negotiable certificates of deposit as acceptable forms of bond. Section 509(e) of the Act requires that the regulatory authority adjust the bond terms and amount from time to time as affected acreage increases or decreases or when the cost of future reclamation changes. Our regulations implementing the requirements of the Act may be found in the Code of Federal Regulations at 30 CFR part 800.
When a regulatory authority issues a permit, the regulatory authority envisions that the permittee will conduct mining in accordance with the approved permit and the operation will meet all requirements of the Act and the regulatory program. In practice we have found that events occur during mining and reclamation that were not anticipated during development of the reclamation plan. Some of those events result in violations of the Act or regulatory program and corrective actions can be taken to eliminate the violation. Other unanticipated events, such as the formation of acid or toxic mine drainage, require long-term treatment and are not easily addressed. For purposes of this Advance Notice, the acronym “AMD” includes both acid and toxic drainage from surface coal mining and reclamation operations, consistent with our AMD Policy Statement.
We have been involved in litigation in recent years pertaining to, among other things, the requirement for financial assurance for the long-term treatment of AMD, and the evaluation of the adequacy of the financial guarantee for long-term treatment. Our current regulations recognize certain acceptable forms of bond. We did not envision the complexity of the issues associated with financial assurances for long-term treatment of AMD. Those complexities suggest the need for financial mechanisms more appropriate to address a long-term commitment to treat AMD.
We are issuing this Advance Notice of Proposed Rulemaking to seek comment on whether we should codify the following requirements: (1) That only permits where the operation is designed to prevent off-site material damage to the hydrologic balance and minimize both on- and off-site disturbances to the hydrologic balance will be approved, and (2) that financial responsibility associated with AMD should be fully addressed. We are also requesting input from all parties on how we can best address the proper level of treatment and number of years to use in calculating financial assurance amounts for AMD, appropriate financial mechanisms to cover costs, and suggestions on appropriate enforcement in cases where financial assurance is absent or not fully adequate for the long-term, but AMD is still being treated.
The prevention of future AMD from coal mining operations into surface and ground waters and the remediation of mining-related pollutional discharges are high priorities of the Office of Surface Mining Reclamation and Enforcement. To advance these priorities, we developed policy goals, objectives, and strategies to protect the hydrologic balance in coal mining areas from the effects of AMD. This was done after extensive input from primacy States, other Federal agencies, the environmental community, industry representatives and coalfield citizens concerned about AMD. The policy statement adopted in March 1997 can be found in its entirety on our home page at
Our policy statement identified goals for environmental restoration and environmental protection. Under each goal were objectives. The policy principles that we are considering codifying under this effort pertain to Objectives 1 and 2 under the goal “Environmental Protection” as follows.
This is our long-standing policy, which we believe correctly interprets the law. We invite comment on whether codification of these principles would be helpful to the public.
Both section 509(a) of SMCRA and the implementing regulations at 30 CFR 800.14(b) require that the amount of bond posted for a permit be sufficient to assure completion of the reclamation plan if the work has to be performed by the regulatory authority in the event of forfeiture. If post-mining pollutional discharges develop, the permittee's reclamation liability extends to the abatement or long-term treatment of the discharge and continues as long as treatment is needed. Before treatment costs can be calculated, the appropriate treatment standard must be established.
Under section 702(a) of SMCRA and court decisions interpreting that provision, we have no authority to deviate from effluent limits and other water quality standards established under the Clean Water Act. In our experience, National Pollutant Discharge Elimination System (NPDES) permitting authorities generally establish effluent limits for bond forfeiture sites on a case-by-case basis after forfeiture has occurred. The SMCRA regulatory authority will not know what those limits are at the time that treatment costs must be determined to establish the appropriate amount of the bond or other financial assurance. However, the SMCRA regulatory authority does have an independent responsibility under sections 510(b)(3) and 515(b)(10) of SMCRA to protect the hydrologic balance. Accordingly, we are seeking input on the appropriate level of treatment upon which financial assurance amounts should be calculated.
Specifically:
(1) What standards should be used to determine water treatment, such as effluent limits or other water quality standards, in the calculation of financial assurance amounts?
(2) What role should we, States, and permittees have in calculating treatment costs?
Another major factor in the calculation of financial assurance amounts for AMD is the length of time. In rare cases, technical analysis of a given discharge may be able to define (predict) the time over which pollution loading will cease so that treatment will no longer be needed. Absent that determination, the discharge is an indefinite or “perpetual” liability for the permittee.
Over the past several years, we have been discussing this issue with state regulatory authorities. The application of bonding to treatment of discharges requires that the length of time be specified in calculating overall long-term treatment costs. This is necessary in order to establish revenue needs based upon the present value of future annual treatment costs. We, in Tennessee, and several state regulatory authorities have been working with bond adjustment requirements to address the cost of long-term treatment of pollutional discharges, including interest-bearing options such as trust funds. At this time, we are seeking input on the appropriate number of years upon which financial assurance amounts should be calculated.
Specifically:
(1) What timeframe should be used to calculate long-term treatment costs for those sites without a defined endpoint? Please provide a detailed rationale for your suggested timeframe.
(2) What role should we, States, and permittees have in determining the timeframe for calculating treatment costs?
The bond forms prescribed in 30 CFR 800.12 (collateral bond, surety bond, and self-bond) do not necessarily lend themselves well to bonds for water treatment costs because of the lengthy timeframes involved and uncertainties associated with the AMD treatment obligations. In addition, surety and collateral bonds may involve high up-front costs or collateral requirements.
We discussed the acceptance of other types of financial mechanisms when we stated in the preamble to 30 CFR 700.11(d) that jurisdiction over a mine site with a pollutional discharge may be terminated only if “a contract or other mechanism enforceable under other provisions of law” provides for treatment and all other performance standards are met.
We are seeking input on what types of financial instruments or combinations of instruments are both appropriate and available for financial assurance of long-term treatment of AMD. We encourage commenters to address the following questions:
(1) What types of financial instruments are available to cover long-term AMD treatment costs? How do they work? What are the optimal terms for each? What is the estimated annual cost to the permittee?
(2) Is insurance coverage an option to cover unanticipated AMD costs? If so, please provide the details, estimated cost, and the timing of when a policy should be obtained.
(3) If available, should an insurance policy be considered as a backup to other forms of financial assurance?
(4) What types of contracts and other enforceable mechanisms would provide adequate assurance of continuing treatment?
(5) Please describe any changes in, or new, regulations and/or statutory provisions that you believe would be necessary to implement your suggestions.
At present, when a postmining pollutional discharge requiring long-term treatment develops, our AMD Policy and regulations (30 CFR 800.15) provide that the regulatory authority must order the permittee to adjust the bond to reflect the increased reclamation costs. However, this approach may not be the most effective or environmentally beneficial strategy. First, there may no longer be any active mining within the permit area when the discharge develops. Under those conditions, the regulatory authority has less leverage to obtain the increased bond amount because the prohibition in 30 CFR 800.11(c) against disturbance of areas before posting the required performance bond has no impact. Second, insisting on immediate posting of the increased bond amount may provide permittees who are treating the discharge but cannot afford the increased bond an incentive to cease operations and abandon the site rather
We are seeking comments on appropriate enforcement of the financial assurance requirement for treatment of discharges that occur after mining begins. Specifically:
(1) What enforcement action should be taken in situations where a pollutional discharge develops while mining is still occurring and the permittee is treating the discharge but the bond or other financial assurance is inadequate to ensure treatment of the discharge in the event of forfeiture?
(2) What enforcement action should be taken in situations where a pollutional discharge develops after mining is completed and the permittee is treating the discharge but the bond or other financial assurance is inadequate to ensure treatment in the event of forfeiture?
(3) Should we develop timeframes for bond adjustment (and sanctions for non-adjustment) similar to those of the bond replacement regulations at 30 CFR 800.16?
We welcome your comments on these and other relevant issues on the costs of AMD treatment and forms of financial assurance.
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a proposed amendment to the Illinois regulatory program (Illinois program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The Illinois Department of Natural Resources, Office of Mines and Minerals (Department or Illinois) is proposing revisions to and additions of regulations about definitions, areas designated by Act of Congress, criteria for designating areas as unsuitable for surface coal mining operations, requirements for permits and permit processing, coal exploration, and performance bond release. Illinois also proposes to correct or remove outdated references in several regulations. Illinois intends to revise its program to be consistent with the corresponding Federal regulations and to clarify ambiguities.
This document gives the times and locations that the Illinois program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4:00 p.m., e.s.t., June 17, 2002. If requested, we will hold a public hearing on the amendment on June 11, 2002. We will accept requests to speak at a hearing until 4 p.m., e.s.t. on June 3, 2002.
You should mail or hand deliver written comments and requests to speak at the hearing to Andrew R. Gilmore, Director, Indianapolis Field Office, at the address listed below.
You may review copies of the Illinois program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Indianapolis Field Office.
Andrew R. Gilmore, Director, Indianapolis Field Office. Telephone: (317) 226-6700. Internet:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.”
By letter dated April 8, 2002 (Administrative Record No. IL-5077), Illinois sent us an amendment to its program under SMCRA (30 U.S.C. 1201
1. Illinois proposes to delete its definition of “Interagency Committee.” Illinois is removing this definition because Illinois Public Act 90-0490 abolished the Interagency Committee in 1997.
2. Illinois proposes to remove the existing language from its definition of “valid existing rights” and to add a reference to the new definition of “valid existing rights” at 62 IAC 1761.5.
Illinois proposes to add a new definition of valid existing rights. At 62 IAC 1761.5(a), the definition requires a person claiming valid existing rights to make a property rights demonstration. The person must demonstrate that a legally binding conveyance, lease, deed, contract, or other document vests that person with the right to conduct surface coal mining operations on lands where mining is normally prohibited or limited. At 62 IAC 1761.5(b), the definition requires a person claiming valid existing rights to demonstrate compliance with either a good faith/all permits standard or a needed for and adjacent standard for lands where mining is normally prohibited or limited. At 62 IAC 1761.5(c), the definition contains requirements for demonstrating the right to use or construct a road across the surface of lands where mining is normally prohibited or limited.
Illinois proposes to delete existing paragraph (b), which prohibited surface coal mining on specified Federal lands unless called for by Acts of Congress. Illinois also proposes to redesignate paragraphs (a)(1) through (7) as paragraphs (a) through (g), correct citation references, and simplify its use of numbers.
Illinois proposes to remove its existing procedures section and add provisions that address exceptions for existing operations from the prohibitions and limitations of mining on lands where mining is normally prohibited or limited. It describes which operations qualify for these exceptions.
Illinois proposes to add this section to address procedures for relocating or closing a public road or waiving the prohibition of mining operations within the buffer zone of a public road.
Illinois proposes to add this section to address procedures for waiving the prohibition of mining operations within the buffer zone of an occupied dwelling.
Illinois proposes to add this section to address the submission and processing of requests for valid existing rights determinations. It describes the procedures applicants for surface coal mining operation permits must follow when requesting a valid existing rights determination. It also describes the evaluation procedures and decision-making criteria the regulatory authority will follow when making a valid existing rights determination.
Illinois proposes to add this section to address the actions it must take upon receipt of an application for a permit for surface coal mining operations. It requires the Department to review the application to determine whether the proposed surface coal mining operation would be located on any lands protected under 62 IAC 1761.11. It includes procedures that the Department must follow when it determines that a proposed surface coal mining operation will adversely affect a publicly owned park or a place listed on the National Register of Historic Places.
Illinois proposes to redesignate existing section 1762.14 as new section 1762.15 without any changes. Illinois proposes to add the following provision at new section 1762.14:
If the Department determines that the proposed surface coal mining operation is not prohibited under Section 7.01 of the State Act and this Part, it may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of surface coal mining operations pursuant to 62 Ill. Adm. Code 1762 or 1764.
1. Illinois proposes to add a new provision at section 1772.12(b)(14) for coal exploration on lands where mining is prohibited or limited under 62 IAC 1761.11. It requires a demonstration that the proposed exploration activities have been designed to minimize interference with the activities for which the areas were designated unsuitable for mining.
2. Illinois proposes to add a new provision at section 1772.12(d)(2)(D) to address a finding the Department must make in approving coal exploration on lands where mining is prohibited or limited under 62 IAC 1761.11. The Department must find that the applicant has demonstrated that the exploration and reclamation activities will minimize interference, to the extent technologically and economically feasible, with the values for which the lands were designated as unsuitable for surface coal mining operations. The Department must provide for comment by the landowner or agency with jurisdiction over the protected feature.
Illinois proposes to revise section 1800.40(b)(2) to allow the Department, when no public hearing is held, to make its final administrative decision to release or not to release all or part of the performance bond either 60 days after filing or 5 days after the close of the comment period, whichever is later.
Illinois proposes to correct citation references and simplify its use of numbers in 62 IAC 1773.13(a)(1)(E), 1773.15(c)(3)(B), 1778.15(e), 1778.16(c), 1780.31(a)(2), 1780.33, 1784.17(a)(2), 1784.18, 1816.116(a)(2)(C), and 1847.9(a).
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.
Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (
Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: [IL-099-FOR]” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Indianapolis Field Office at (317) 226-6700.
We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
In this rule, the State is proposing valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the Federal valid existing rights rule. The takings implications assessment for the Federal valid existing rights rule appears in Part XXIX.E of the preamble to that rule.
This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local governmental agencies or geographic regions; and (c) does 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. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of withdrawal of proposed amendment.
We, the Office of Surface Mining (OSM), are announcing the withdrawal of proposed rule changes to the Ohio regulatory program (the “Ohio program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Ohio proposed to revise its program by amending the definition of “inactive coal mining and reclamation operation” with respect to prime farmland.
This withdrawal is made on May 17, 2002.
Mr. George Rieger, Telephone: (412) 937-2153, Internet address:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.”
By letter dated September 13, 2001, Ohio sent us an amendment to its program (Administrative Record Number OH-2181-00) under SMCRA (30 U.S.C. 1201
The provision of the Ohio Administrative Code (O.A.C.) that Ohio proposed to revise is: O.A.C. 1501:13-14-01, Inspections. Specifically, Ohio proposed to revise the definition of “inactive coal mining and reclamation operation” with respect to prime farmland. Under the State's current rule, “inactive coal mining and reclamation operation” means an operation:
(a) For which the chief has secured from the permittee the written notice required under paragraph (A) of rule 1501:13-9-16 of the Administrative Code;
(b) Conducted under a D-permit, for which reclamation phase II as defined in (B)(1)(b)(I, II, AND IV) of rule 1501:13-7-05 of the Administrative Code has been completed.
The State proposed to add the following language to the end of part (b) of the current rule:
With respect to prime farmland, soil replacement has been carried out in accordance with the requirements of Rule 1501:13-13-03 of the Administrative Code and Division (A)(7) of Section 1513.16 of the Revised Code and sufficient ground cover has been established to prevent erosion or, where row crops are the approved reference crop, the initial planting has occurred.
The effect of the proposed change would have been to reduce the frequency of inspections required for reclaimed areas of prime farmland by classifying such areas as inactive before Phase II reclamation has been completed.
We announced receipt of the proposed amendment in the November 7, 2001
In a letter dated February 15, 2002, Ohio notified us that it was withdrawing the proposed amendment from consideration. Because the proposed amendment is not necessary to make the State's program consistent with SMCRA, OSM accepted the withdrawal.
Intergovernmental relations, Surface mining, Underground mining.
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a proposed amendment to the Utah regulatory program (hereinafter, the “Utah program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Utah proposes revisions to and additions of rules pertaining to water replacement, blaster certification, standards for surety companies, and inspection and enforcement. Utah intends to revise its program to be consistent with the corresponding Federal regulations, provide additional safeguards, and improve operational efficiency.
This document gives the times and locations that the Utah program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4 p.m., mountain daylight time on June 17, 2002. If requested, we will hold a public hearing on the amendment on June 11, 2002. We will accept requests to speak until 4 p.m., mountain daylight time on June 3, 2002.
You should mail or hand-deliver written comments and requests to speak at the hearing to James F. Fulton, Chief, Denver Field Division, at the address listed below.
You may review copies of the Utah program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Denver Field Division.
Mr. James F. Fulton, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, Colorado 80202-5733. (303) 844-1400, extension 1424. Internet:
Mr. Lowell P. Braxton, Director, Division of Oil, Gas and Mining, 1594 West North Temple, Suite 1210, P.O. Box 145801, Salt Lake City, Utah 84114-5801.
James F. Fulton, Chief, Denver Field Division, telephone: (303) 844-1400, extension 1424; Internet:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.”
By letter dated March 28, 2002, Utah sent us a proposed amendment to its program (UT-041-FOR, Admin. Record No. UT-1160) under SMCRA (30 U.S.C. 1201
Utah proposes the following changes to the Utah Administrative Rule (Utah Admin. R.). The changes are: (1) In its definitions at Utah Admin. R. 645-100-200, Utah proposes to remove the definition of “State-Appropriated Water Supply” and replace it with a new combined definition of the terms “Water Supply,” “State-appropriated Water,” and “State-appropriated Water Supply,” all of which it intends to be synonymous and to mean “state appropriated water rights which are recognized by the Utah Constitution or Utah Code;” (2) at Utah Admin. R. 645-105-314, Utah proposes to add a new blaster certification rule that would require candidates for certification to be twenty-one years of age or older; (3) at Utah Admin. R. 645-301-525.130, Utah proposes to add a new provision requiring a permit applicant to give a copy of the pre-subsidence survey and any technical assessment or engineering evaluation to the water conservancy district, if any, where the mine is located; (4) at Utah Admin. R. 645-301-525.700, the State proposes to add a new requirement that the underground mine operator mail a notification of proposed mining to the water conservancy district, if any, in which the mine is located; (5) at Utah Admin. R. 645-301-728.350, the State proposes to revise its rule to require that determinations of probable hydrologic consequences include findings on whether underground coal mining and reclamation activities conducted after October 24, 1992, may result in contamination, diminution, or interruption of State-appropriated Water in existence within the proposed permit or adjacent areas at the time the application is submitted, and to delete the existing phrase “and used for legitimate purposes within the permit or adjacent areas * * *” at the end of that sentence; (6) at Utah Admin. R. 645-301-860.110 through—860.112, Utah proposes to add new requirements for companies that issue surety bonds to meet to provide the State with standards by which to judge their financial stability; (7) at Utah Admin. R. 645-400-162 and 645-400-381, the State proposes to change its existing references to section 40-10-22 of the Utah Code Annotated (UCA) to reference UCA 40-10-19 so on-site compliance conferences will not be considered inspections in the context of that statutory provision; (8) in the enforcement rule at Utah Admin. R. 645-400-319, Utah proposes to change the existing reference to Utah Admin. R. 645-300-147 to cite Utah Admin. R. 645-300-148 instead, which requires permittees to submit ownership and control information to the Division of
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Utah program.
Send your written or electronic comments to OSM at the address given above. Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (
Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS No. UT-041-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Denver Field Division at (303) 844-1400, extension 1424.
We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak, and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.
This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does 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. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
Coast Guard, DOT.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for the 4th of July Parade Fireworks on July 3, 2002 in Manchester, MA. The safety zone would temporarily close all waters of Manchester Bay within a 400-yard radius of the fireworks barge. The safety zone will prohibit entry into or movement within this portion of Manchester Bay during this event.
Comments and related material must reach the Coast Guard on or before June 17, 2002.
You may mail comments and related material to Marine Safety Office Boston, 455 Commercial Street, Boston, MA. Marine Safety Office Boston maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of the docket and will be available for inspection or copying at Marine Safety Office Boston between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
LT Dave Sherry, Marine Safety Office Boston, Waterways Safety and Response Division, at (617) 223-3000.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-02-055), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not plan to hold a public meeting. However, you may submit a request for a meeting by writing to Marine Safety Office Boston at the address under
This regulation proposes to establish a temporary safety zone in Manchester Bay within a 400-yard radius of the fireworks barge located at position 42°34.054′ N, 070°45.52′ W. The safety zone will be in effect from 9 p.m. until 10:30 p.m. on July 3, 2002.
The zone would restrict movement within this portion of Manchester Bay and is needed to protect the maritime public from the potential dangers posed by the fireworks display. Marine traffic may transit safely outside of the safety zone during the effective periods. The Captain of the Port does not anticipate any negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via safety marine information broadcasts and local notice to mariners.
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. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040, February 26, 1979).
The Coast Guard expects the economic impact of this proposed rule to be minimal enough that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.
Although this proposed regulation would prevent traffic from transiting a portion of Manchester Bay during the event, the effects of this rule would not be significant for several reasons: the minimal time that vessels would be restricted from the area, vessels would be able to safely transit outside of the proposed safety zone, and advance notifications would be made to the local maritime community by safety marine information broadcasts and local notice to mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard 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 rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Manchester Bay on July 3, 2002. This proposed safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: vessel traffic could safely pass outside of the safety zone during the event, the event would be limited in duration, and advance notifications would be made to the local maritime community by safety marine information broadcasts and local notice to mariners.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed 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 effects 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 LT Dave Sherry at the address listed under
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
The Coast Guard analyzed this proposed rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.
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 Constitutionally Protected Property Rights.
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.
The Coast Guard 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 does not pose an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribe, 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 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The Coast Guard considered the environmental impact of this proposed rule and concluded that, under figure 2-1, (34)(g), of Commandant Instruction M16475.lD, this proposed rule is categorically excluded from further environmental documentation. A “Categorical Exclusion 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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; 49 CFR 1.46.
2. Add temporary § 165.T01-055 to read as follows:
(a)
(b)
(c)
(1) In accordance with the general regulations in § 165.23 of this part, entry into or movement within this zone will be prohibited unless authorized by the Captain of the Port (COTP) Boston.
(2) All vessel operators shall comply with the instructions of the COTP or the designated on-scene U.S. Coast Guard patrol personnel. On-scene Coast Guard patrol personnel include commissioned, warrant, and petty officers of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, local, state, and federal law enforcement vessels.
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking.
The United States Patent and Trademark Office (USPTO) proposes to amend its rules to require payment of a $50.00 paper-processing fee when a party submits a paper instead of an electronically transmittable form available through the Trademark Electronic Application System (TEAS). If a party submits a paper document to the USPTO, and the TEAS system includes a form for preparing that document and transmitting it to the USPTO electronically, the fee for submitting the paper document will be fifty dollars more than the fee for submitting the equivalent electronic document via TEAS.
Comments must be received by June 17, 2002, to ensure consideration.
Mail comments to the Commissioner for Trademarks, 2900 Crystal Drive, Arlington, Virginia 22202-3513, attention Craig Morris; fax comments to (703) 872-9279, attention Craig Morris; or e-mail comments to
Craig Morris, Office of the Commissioner for Trademarks, (703) 308-8910, extension 136; or e-mail to
The USPTO proposes to amend 37 CFR 2.6(a), § 2.6(a) of the Rules of Practice in Trademark Cases, (rules), to provide that if a party submits a document using paper, and a form for preparing and electronically submitting that document is available in the Trademark Electronic Application System (TEAS), the fee for submitting the paper document will be $50.00 more than the fee for submitting the equivalent TEAS document.
TEAS is a collection of electronic trademark-document forms. The documents for which TEAS forms are currently available are: (1) Applications for registration of marks under Sections 1 and 44, Trademark Act of 1946, as Amended, (Trademark Act), 15 U.S.C. 1051 and 1026; (2) amendments to allege use under section 1(c) of the Trademark Act, 15 U.S.C. 1051(c); (3) statements of use under section 1051(d) of the Trademark Act, 15 U.S.C. 1051(d); (4) requests for extensions of time to file a statement of use under section 1(d) of the Trademark Act, 15 U.S.C. 1051(d); (5) affidavits of continued use or excusable nonuse under section 8 of the Trademark Act, 15 U.S.C. 1058; (6) applications for renewal under section 9, 15 U.S.C. 1059; (7) affidavits of incontestability under section 15 of the Trademark Act, 15 U.S.C. 1065; (8) combined affidavits under sections 8 and 15 of the Trademark Act, 15 U.S.C. 1058 and 1065; and (9) combined filings under sections 8 and 9 of the Trademark Act, 15 U.S.C. 1058 and 1059.
As additional TEAS forms are created, the USPTO may, after appropriate notice, require that parties who submit paper documents in place of these new TEAS forms pay a $50.00 processing fee for each document submitted on paper.
The amount of the processing fee was calculated using the Activity-Based Costing method employed by the USPTO in its budgeting process. The $50.00 paper-processing fee reflects the additional average cost of processing a paper document rather than an electronic document within the Trademark Operation.
Each TEAS form can be completed by the trademark applicant or attorney and filed with the USPTO at the click of a button. The system is available at
To file an initial TEAS application for a stylized or design mark, or to include a specimen with a TEAS submission, the filer must attach a black-and-white GIF or JPG image file. Additionally, although TEAS is available at all times, during the hours between 11 p.m. EST, Saturday, and 6 a.m. EST, Sunday, credit card payments cannot be processed. Therefore, during those hours, any fees associated with a TEAS submission cannot be paid using a credit card. However, fees may be paid at all times using either electronic funds transfers or a USPTO deposit account.
When a customer elects to use TEAS rather than paper, substantial benefits accrue both to the customer and to the USPTO.
Processing paper documents is more costly, labor-intensive, and results in additional errors, misfilings and losses as contrasted to electronic filing. A new application must undergo multiple steps before it is ready for examination, including fee processing, review for minimum filing requirements, capture of data into automated databases, and paper file jacket assembly. In addition to processing new applications, the USPTO must sort through several thousand other documents that are received on a daily basis. These documents must be delivered to the appropriate work unit, matched with the paper file, and entered into the file jacket and the automated systems.
Processing electronically submitted TEAS documents, in contrast, is substantially less costly and less labor intensive, and is subject to fewer errors. As a result, the data in the USPTO's databases from an electronically submitted document tends to be of higher quality than the same data from a paper document and is moved into the USPTO's databases at substantially less cost than the data captured from paper documents. The data provided in electronic submissions is tagged to permit transfer into the USPTO's databases with a minimum of human intervention. Additionally, electronically submitted documents are less likely to be misdirected.
Electronic filing benefits the public as well. TEAS is available for filing trademark documents 24 hours a day, seven days a week at
Electronically filed applications are processed faster than their paper counterparts. Filing receipts for TEAS applications are sent via e-mail the same day the document is filed, while filing receipts for paper applications are mailed about 14 days after filing; critical data concerning TEAS applications (
Electronic filing and communication allow the USPTO to provide more customers with better quality, using fewer resources. Electronic filing improves the quality and accuracy of the information that is submitted to and processed by the USPTO. Customers have greater assurance that the content of the electronic application is complete, because the information provided by the customer is loaded directly into the USPTO's automated systems.
A processing fee for filing paper when a TEAS form is available, will offset the additional costs that the USPTO incurs when it processes paper.
As the relative costs of processing paper and electronic submissions become more apparent, the USPTO may, after appropriate notice, revise the rules to lower the fees for TEAS submissions.
The USPTO proposes to revise paragraph (a) of 37 CFR 2.6 to provide that a party who files a paper document that is available in TEAS must pay a paper processing fee of fifty dollars.
The USPTO has determined that the proposed rule changes have no federalism implications affecting the relationship between the National Government and the State as outlined in Executive Order 12612.
The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration, that the proposed rule changes will not have a significant impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)). The rule will not significantly impact any businesses. As a result, an initial regulatory flexibility analysis was not prepared.
The proposed rule changes are in conformity with the requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Notwithstanding any other provision of law, no person shall be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. This rule contains collections of information requirements that have been approved by OMB under OMB Control Number 0651-0009. The public reporting burden for this collection of information is estimated to average as follows: seventeen minutes for applications to obtain registrations based on an intent to use the mark under 15 U.S.C. 1051(b), if completed using paper forms; fifteen minutes for applications based on 15 U.S.C. 1051(b), if completed using electronic forms; twenty-three minutes for applications to obtain registrations based on use of the mark in commerce under 15 U.S.C. 1051(a), if completed using paper forms; twenty-one minutes for applications to obtain registrations based on 15 U.S.C. 1051(a), if completed using electronic forms; twenty minutes for applications to obtain registrations based on an earlier-filed foreign application under 15 U.S.C. 1126(d), if completed using paper forms; nineteen minutes for applications to obtain registrations based on 15 U.S.C. 1126(d), if completed using electronic forms; twenty minutes for applications to obtain registrations based on registration of a mark in a foreign applicant's country of origin under 15 U.S.C. 1126(e), if completed using paper forms; eighteen minutes for applications to obtain registrations based on 15 U.S.C. 1126(e), if completed using electronic forms; thirteen minutes for allegations of use of the mark under sections 2.76 and 2.88 if completed using paper forms; twelve minutes for allegations of use under sections 2.76 and 2.88 if completed using electronic forms; ten minutes for requests for extensions of time to file statements of use under section 2.89 if completed using paper forms; nine minutes for requests for extensions of time to file statements of use if completed using electronic forms; eleven minutes for Section 8 affidavits if completed using paper forms; ten minutes for Section 8 affidavits if completed using electronic forms; fourteen minutes for combined Sections 8 and 9 filings if completed using paper forms; thirteen minutes for combined Section 8 and 9 filings if completed using electronic forms; fourteen minutes for combined Sections 8 and 15 affidavits if completed using paper forms; thirteen minutes for combined Sections 8 and 15 affidavits if completed using electronic forms; eleven minutes for Section 15 affidavits if completed using paper forms; and ten minutes for Section 15 affidavits if completed using electronic forms. These time estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Comments are invited on: (1) Whether the collection of information is necessary for proper performance of the functions of the agency; (2) the accuracy of the agency's estimate of the burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information to respondents.
Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to the Commissioner for Trademarks, 2900 Crystal Drive, Arlington, VA 22202-3513 (Attn: Ari Leifman), and to the Office of Information and Regulatory Affairs, OMB, 725 17th Street, NW., Washington, DC 20503 (Attn: PTO Desk Officer).
Administrative practice and procedure, Trademarks.
For the reasons given in the preamble and under the authority contained in 35 U.S.C. 2 and 15 U.S.C. 41, as amended,
1. The authority citation for part 2 continues to read as follows:
35 U.S.C. 2.
2. Revise § 2.6(s) to read as follows:
(a) * * *
Federal Communications Commission.
Notice of proposed rulemaking.
The Commission has before it an amended petition for rulemaking filed by PetroCom License Corporation (“Petitioner”), requesting that the Commission amend its rules to permit licensing of the MDS and ITFS spectrum in the Gulf of Mexico. The Commission proposes to establish a Basic Trading Area (“BTA”)-like area in the Gulf of Mexico. The Commission's goal in instituting this proceeding is to encourage the most efficient utilization of spectrum.
Comments due June 17, 2002. Reply comments are due August 15, 2002.
Shellie Blakeney, (202) 418-1784, Public Safety Private Wireless Division, Wireless Telecommunications Bureau.
This is a synopsis of the Commission's A
The Commission rejects arguments by the Wireless Communications Association (“WCA”) against the creation of the Gulf Service Area based on the possibility that higher prices were paid for BTAs bordering the Gulf because of a guaranteed lack of interference on that side of those BTAs. Rather, in light of the Commission's actions over the last several years to encourage the most efficient use of spectrum by private users, WCA and other interested parties had no reason to expect that, absent substantial and compelling public interest reasons, we would leave a portion of the spectrum under our jurisdiction permanently fallow. The Commission proposes to exclude all ITFS channels from the proposed Gulf auction. ITFS licensees have not expressed interest in obtaining licenses in the Gulf, the area most likely has little need for educational service, and the requested commercial use does not require the full bandwidth available in the 2500-2690 MHz band.
Because of the potential for interference to land-based MDS and ITFS systems in the Gulf coast area, the Commission proposes that an offshore frequency allocation should be limited in size to no more than is absolutely essential for successful deployment and growth of the proposed service. Given the type of communications circuits deployed in Petitioner's previously existing developmental system, and the circuits likely to be deployed if we authorize regular service in the Gulf, the Commission proposes to auction two blocks of spectrum, each consisting of two 6 MHz MDS channels.
The Commission proposes to conduct the auction for MDS licenses in the Gulf in conformity with the general competitive bidding rules set forth in Part 1, subpart Q of the Commission's rules, and substantially consistent with the bidding procedures that have been employed in previous Commission auctions. Specifically, the Commission proposes to employ the Part 1 rules governing designated entities, application issues, payment issues, competitive bidding design, procedure and timing issues, and anti-collusion.
As required by the Regulatory Flexibility Act (RFA),
Section 309(j) of the Communications Act directs the Commission to disseminate licenses among a wide variety of applicants, including small businesses and other designated entities.
Upon consideration of these numerous requests, the Commission has tentatively concluded that it is in the public interest to permit licensing of the MDS spectrum in the Gulf of Mexico. The Commission believes that this NPRM will provide the Commission with an opportunity to develop a record on the specific proposals to open eligibility for this spectrum in the Gulf of Mexico and otherwise revise the MDS rules for the benefit of consumers and the economy. In addition, the Commission believes that the tentative conclusions and proposals set forth in this NPRM help meet the goals and objectives of section 309(j), and promote competition while maintaining the fair and efficient implementation of the auctions program. Accordingly, the Commission seeks comment on all proposals, alternatives, tentative conclusions, and other issues described in the NPRM; and the impact that such proposals, alternatives, tentative conclusions, and other issues may have on small entities.
This action is authorized under Sections 4(i), 303(r), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 309(j).
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 proposed rules, if adopted.
A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”
MDS historically provided primarily point-to-multipoint, one-way video services to subscribers.
At this time, the Commission does not anticipate the imposition of new reporting, recordkeeping, or other compliance requirements as a result of this NPRM. We seek comment on this tentative conclusion.
The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include 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 party thereof, for small entities.
In this action, we tentatively reject Petitioner's suggestion that we set aside one or more licenses for small businesses. Because we are only proposing to auction two blocks of spectrum, each consisting of two 6 MHz MDS channels, we believe that a set-aside would prevent the timely and efficient use of such spectrum. We seek comment on our rejection of Petitioner's request to set aside one or more licenses for small businesses. In lieu of setting aside a license in the Gulf, we note that Section 309(j)(4)(A) of the Communications Act provides that to promote small businesses, we shall consider alternative payment schedules, including lump sums or guaranteed installment payments.
The Commission expects that the creation of a Gulf Service Area will have
None.
56. Pursuant to the authority contained in sections 4(i), 303(r), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 309(j), this Notice of Proposed Rulemaking is hereby
57. The Commission's Office of Consumer and Governmental Affairs, Reference Information Center,
Communications common carriers, Education.
Federal Communications Commission.
Proposed rule.
In this document the Commission solicits comment on the Commission's Rules regarding Maritime Communications. These comments will aid the Commission in establishing rules to further the implementation of the Global Maritime Distress and Safety System (GMDSS) and continue the process of streamlining, consolidating and revising domestic maritime radio regulations. In addition, the comments will aid the Commission in understanding the impact the proposed changes may have on the maritime community, including vessel operators, manufacturers of marine radio equipment, and commercial radio operator licensees. The comments will provide the Commission with feedback that will allow it to better craft rules that will enhance safety while at the same time avoiding the imposition of unnecessary or unwarranted burdens on regulated entities.
Written comments are due on or before August 15, 2002 and reply comments are due on or before September 16, 2002.
Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th St., SW., Washington, DC 20554. Filings can be sent first class by the US Postal Service, by an overnight courier or hand and messenger-delivered. Hand and message-delivered paper filings must be delivered to 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. Overnight courier (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
Jeffrey Tobias,
This is a summary of the Federal Communications Commission's Further Notice of Proposed Rule Making, FCC 02-102, adopted on March 27, 2002, and released on April 9, 2002. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at:
1. In this
2. This is a permit-but-disclose notice and comment rulemaking proceeding.
3. Pursuant to §§ 1.415 and 1.419 of our Rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before August 15, 2002 and reply comments on or before September 16, 2002. Comments may be filed using the Commission's Electronic Filing System (ECFS) or by filing paper copies.
4. Comments filed through the ECFS can be sent as an electronic file via the Internet to
5. Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Jeffrey Tobias, Esq., Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, 445 12th St., SW., Room 2-C828, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Microsoft Word 97 or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the lead docket number in this case, WT Docket No. 00-48), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters should send diskette copies to the Commission's copy contractor, Qualex International, Inc., 445 12th Street, SW., Room CY-B402, Washington, D.C. 20054.
6. This
7. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in the
8. The proposed rules in the
9. Authority for issuance of this item is contained in Sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 403.
10. Under the RFA, small entities may include small organizations, small businesses, and small governmental jurisdictions, or entities. 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 proposed rules, if adopted. 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 that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency after consultation with the Office of Advocacy of the SBA, and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
11. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF) radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, a VHF aircraft radio, and/or any type of emergency locator transmitter (ELT). The Commission has not developed a definition of small entities specifically
12. The proposed amendments may also affect small businesses that manufacture marine radio equipment. The Commission has not developed a definition of small entities applicable to Radio Frequency Equipment Manufacturers (RF Manufacturers). Therefore, the applicable definition of small entity is the definition under the SBA
13. The
14. The
15. The
16. The
17. The
18. The
19. The
20. The
21. The
22. Finally, commenters are asked to identify any other proposed or discussed rule changes in the
23. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include 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.
24. The
25. In addition, we hereby invite commenters to address the possibility of exempting certain entities, particularly small entities, from some of the proposed requirements. For example, we seek comment on whether the proposed amendment of 47 CFR 80.225 should apply to manufacturers of basic selective calling equipment as well as manufacturers of digital selective calling equipment. We also question whether small passenger vessels should be exempt from the DSC requirements that would otherwise apply to them by virtue of the proposed amendment of 47 CFR 80.905(a). More broadly, commenters may suggest, with respect to any entities, including small entities, exemptions from any of the requirements proposed or discussed in the
26. Further, the proposed requirements for new equipment generally take the form of performance standards rather than design standards, and therefore confer on smaller entities the flexibility to select the most economical design that can achieve the required performance. For example, the RTCM standards for digital selective calling equipment that we propose to incorporate in 47 CFR 80.225 mandate certain functionality for digital selective calling equipment but do not mandate that manufacturers design their equipment in any particular way in order to achieve that functionality. In a similar vein, the proposed requirements for INMARSAT-E EPIRBs are framed strictly in terms of performance standards.
27. We hereby invite interested parties to address any or all of these regulatory alternatives and to suggest additional alternatives to minimize any significant economic impact on small entities. Any significant alternative presented in the comments will be considered.
28. None.
29. Pursuant to Sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 403, this
30. The Commission will send a copy of this
31. The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this
Communications equipment, Marine safety, Radio, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 80 as follows:
1. The authority citation for part 80 continues to read as follows:
Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377.
2. Section 80.225 is amended by revising paragraph (a) to read as follows:
(a) DSC equipment voluntarily installed in coast or ship stations must meet either the requirements of ITU-R Recommendation 493-10 (including only equipment classes A, B, D, and E) or RTCM Paper 56-95/SC101-STD. DSC equipment must not be used with the sensors referred to in § 80.179(e)(2). DSC equipment used on compulsorily fitted ships must meet the requirements contained in subpart W for GMDSS. All DSC equipment must:
(1) Allow the operator to disable any automatic radiotelephone channel switching function;
(2) Allow the operator the option of manually acknowledging any call;
(3) Not allow the automatic composition of a distress relay alert whose acknowledgment had already been received;
(4) Automatically erase any position information not updated for more than 23
(5) Explicitly prohibit the offering of wrong identities in relay messages;
(6) Ensure that default selections in a displayed menu requesting input, when allowed, should at a minimum follow ITU-R Recommendation M.541-8. A default selection shall never cause an improper or illegal operation.
3. Section 80.373 is amended by revising paragraph (f) to read as follows:
(f)
4. Section 80.1083 is amended by adding a new paragraph (d) to read as follows:
(d) In passenger ships,
(1) A distress panel must be installed at the conning position. This panel shall contain either one single button which, when pressed, initiates a distress alert using all radiocommunications installations required on board for that purpose or one button for each individual installation. The panel must clearly and visually indicate whenever any button or buttons have been pressed. Means must be provided to prevent inadvertent activation of the button or buttons. If the satellite EPIRB is used as the secondary means of distress alerting and is not remotely activated, it shall be acceptable to have an additional EPIRB installed in the wheelhouse near the conning position;
(2) Information on the ship's position must be continuously and automatically provided to all relevant radiocommunications equipment to be included in the initial distress alert when the button or buttons on the distress panel is pressed; and
(3) A distress alarm panel must be installed at the conning position. The distress alarm panel must provide visual and aural indication of any distress alert or alerts received on board and shall also indicate through which radiocommunication service the distress alerts have been received.
5. Section 80.1085 is amended by adding new paragraph (e) to read as follows:
(e) Every passenger ship shall be provided with means for two-way on-scene radiocommunications for search and rescue purposes using the aeronautical frequencies 121.5 and 123.1 MHz from the position from which the ship is normally navigated.
Advisory Council on Historic Preservation.
Notice of meeting.
Notice is hereby given that the Advisory Council on Historic Preservation will meet on Friday, May 31, 2002. The meeting will be held in Room M-09 at the Old Post Office Building, 1100 Pennsylvania Avenue, NW., Washington, DC, beginning at 8:30 a.m.
The Council was established by the National Historic Preservation Act of 1966 (16 U.S.C. Section 470) to advise the President and the Congress on matters relating to historic preservation and to comment upon Federal, federally assisted, and federally licensed undertakings having an effect upon properties listed in or eligible for inclusion in the National Register of Historic Places. The Council's members are the Architect of the Capitol; the Secretaries of the Interior, Agriculture, Defense, and Transportation; the Administrators of the Environmental Protection Agency and General Services Administration; the Chairman of the National Trust for Historic Preservation; the President of the National Conference of State Historic Preservation Officers; a Governor; a Mayor; a Native Hawaiian; and eight non-Federal members appointed by the President.
The agenda for the meeting includes the following:
The meetings of the Council are open to the public. If you need special accommodations due to a disability, please contact the Advisory Council on Historic Preservation, 1100 Pennsylvania Ave., NW., Room 809, Washington, DC, 202-606-8503, at least seven (7) days prior to the meeting.
Additional information concerning the meeting is available from the Executive Director, Advisory Council on Historic Preservation, 1100 Pennsylvania Ave., NW., #809, Washington, DC 20004.
Animal and Plant Health Inspection Service, USDA.
Notice of meeting.
We are giving notice of a meeting of the National Wildlife Services Advisory Committee.
The meeting will be held on June 4 and 5, 2002, from 8 a.m. to 5 p.m. each day.
The meeting will be held at the USDA Center at Riverside, 4700 River Road, Riverdale, MD.
Mr. Monte Chandler, Acting Director, Operational Support Staff, WS, APHIS, 4700 River Road Unit 87, Riverdale, MD 20737-1234; (301) 734-7921.
The National Wildlife Services Advisory Committee (Committee) advises the Secretary of Agriculture concerning policies, program issues, and research needed to conduct the Wildlife Services (WS) program. The Committee also serves as a public forum enabling those affected by the WS program to have a voice in the program's policies.
The meeting will focus on operational and research activities and will be open to the public. Due to time constraints, the public will not be able to participate in the Committee's discussions. However, written statements concerning meeting topics may be filed with the Committee before or after the meeting by sending them to Mr. Monte Chandler at the address listed under
This notice of meeting is given pursuant to 5 U.S.C. app. 10.
Forest Service, Agriculture.
Notice of availability of a Draft Environmental Impact Statement for proposal to issue a road easement to a private landowner and to permit the landowner to reconstruct the Meadows Road #205 to acces their private land in-holding.
Pursuant to the National Environmental Policy Act (NEPA) and implementing regulations and other
Written comments on the FEIS will be accepted for 45 days following the date that the Environmental Protection Agency (EPA) publishes their notice of availability of the DEIS in the
Please address questions, comments or requests for copies of the FEIS to the San Juan Public Lands Center, Attn: Jim Powers, 15 Burnett Court, Durango, Colorado 81301; or phone (970) 247-4874.
Tom Rennick at (970) 882-6823 or Jim Powers at (970) 247-4874.
The responsible official for issuance of the road easement is Rick Cables, Rocky Mountain Regional Forester at PO Box 25127, Lakewood, Colorado 80225-0127. The EIS addresses road reconstruction and issuance of an easement across such road in an inventoried roadless area for the purpose of providing the applicant access to non-federally owned lands within the boundaries of the San Juan National Forest. The private landowner has proposed use of the existing road across the inventoried roadless area to meet their access needs. The Forest Service is seeking information, comments, and assistance from individuals, organizations, tribal governments, and federal, state and local agencies that are interested in or may be affected by the proposed action. The range of alternatives considered on the EIS is based upon public issues raised during scoping in this project, management concerns, and resource management opportunities.
Comments, including names and street addresses of respondents, will be available for public review at the San Juan Public Lands Center, during regular business hours (8 a.m. to 4:30 p.m.), Monday through Friday, except holidays, and may be published as part of the final EIS. Individual respondents may request confidentiality. If you wish to withhold your name or street address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your written comment. Such requests will be honored to the extent allowed by law. All submissions from organizations or businesses, and from individuals identifying themselves as representatives of officials of organizations or businesses, will be made available for public inspection in their entirety.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Surface Creek Ditch and Reservoir Company has asked to be allowed to remove all of the peat from Kennicott Slough Reservoir by mechanical means over the next five to ten years. This is in response to advice from the Colorado State Engineer's office that peat in the reservoir poses a serious risk to the integrity of the reservoir, and that failure of the dam could result in the loss of life and property down stream.
Comments concerning the scope of the analysis must be received by June 1, 2002. The draft environmental impact statement is expected August of 2002 and the final environmental impact statement is expected December of 2002.
Send written comments to Kennicott Slough Analysis, Grand Mesa, Uncompahgre and Gunnison National Forests, 2250 Hwy 50, Delta, Colorado 81416.
Jeff Burch, Environmental Coordinator, Grand Mesa, Uncompahgre and Gunnison National Forests, 2250 Hwy 50, Delta, Colorado 81416.
Kennicott Slough Reservoir capacity is approximately 1,034 acre-feet. The drainage basin area above the dam including the reservoir is about 283 acres. Before a dam was built at Kennicott Slough there existed a natural lake. Associated with this lake were extensive shallows which gradually filled in with peat deposits. These peat deposits are the accumulation of organic materials from wetland vegetation growth over long periods of time. They are thought to be as much as 10,000 years old in some parts of the reservoir. Given enough time they will completely fill shallow lakes and reservoirs. With the construction of the first dam at Kennicott in about 1900 to 1910, the water line of the bankfull pool expanded over existing peat and created more shallows conducive to the formation of peat and the “peat body” began to expand. With the construction of an even higher second dam in 1947 and 1948, fluctuating water levels caused additional detachment of peat from its original location, and peat producing vegetation and the peat body itself continued to expand.
The Forest Service estimates there to be approximately 317,000 cubic yards, or using a conversion of 50 to 70 pounds per cubic foot, 214,300 to 300,000 tons of peat proposed for removal from Kennicott Slough. Approximately 80% of the reservoir's surface area is occupied by either floating or submerged peat. As water levels fluctuate, and especially during spring snow/ice melt and runoff, pieces of peat detach from the main peat body and float freely. As water passes through the reservoir, these pieces of peat tend to migrate toward the outlet and spillway of the reservoir. Some pieces are small; others are large (as much as 40 feet across).
The Colorado State Division of Water Resources has advised that these floating pieces of peat pose a real threat to the safety of the dam. These detached pieces of peat have the potential of blocking either the outlet works or the spillway, causing overfilling of the reservoir, spillage and cutting of the earthen dam, and possible catastrophic failure. Kennicott is a Class I dam, which means that failure poses threat to human safety down stream. The nearest habitation is 3
More recently, the Surface Creek Ditch and Reservoir Company has been authorized each year to remove detached pieces of peat which pose the greatest threat, using mechanical means of removal. In fall, after the reservoir is drained and dried somewhat, a track-mounted backhoe, a front end loader, and dump truck operation remove identified peat. In 2000, approximately 200 tons were removed. This amounted to less than one tenth of one percent of the entire peat body at Kennicott. The same has been done in the fall of 2001, removing designated portions of the peat as part of routine reservoir maintenance. This annual practice of selective removal of peat does not address the broader and more long term problem.
The purpose and need for action is dam safety. The detached pieces of peat directly threaten the safety of the dam with risk of blocking the spillway and outlet works intake. This poses a threat to the integrity of the dam.
The proposed action is to remove the entire peat mass from Kennicott Slough Reservoir (approximately 30 acres) with heavy equipment (excavator, loader, dump truck) over a period of several years, during the months of August through October, in order to prevent additional detachment of the pieces from the main peat mass and subsequent movement of the detached pieces into the reservoir spillway or outlet structure.
Under this alternative no additional peat removal would be authorized from Kennicott Slough Reservoir. This alternative is required by NEPA to be presented as a baseline to consider the environmental effects of action alternatives. In the event the action alternatives were found to be unacceptable, this alternative could be selected. However we are aware that this could (likely would over time) lead to expansion of the peat body, further detachment of peat and threat to the safety and function of the dam. This could lead to the requirement to remove the dam structure and abandon the reservoir.
Under this alternative the current practice of identifying specific areas (typically detached, semi-detached or those with extensive “fractures”) of peat for removal on an annual basis would continue. Only detached pieces could be removed as operations and maintenance (O&M). There would be no systematic removal of the larger peat body. Operations would take place in the fall and would be below the high water line for the reservoir to prevent surface disturbance outside the footprint of the bank-full reservoir.
This is the proposed action, and will not be repeated in detail here. See above.
This alternative compresses the time within which the proposed peat removal would take place. Instead of extending the removal operation over several years, the company would be required to not fill the reservoir until all peat was removed. This would likely still take two to three years. The files on Kennicott have reference to one other occasion when this was attempted but not accomplished due to the cost involved. This would compress all effects into one short time period and would immediately and completely address the dam safety issue.
Under this alternative, an engineering solution would be employed to armor or block the outlet works and the spillway against the deposits of loose peat. This alternative addresses a way to leave most of the peat in place and still maintain the dam in a safe condition as required by the State. In general a strong marine netting would be installed across the reservoir using concrete caisson piles to support the net panels. Prior to installation, peat would have to be removed between the netting location and the high water line toward the direction of the outlet works. The reservoir would be drained and left to dry out to the extent possible in one season to allow collection of the peat, drilling of the caissons, and installation of the net panels. The location of the netting would be about 25 feet from the outlet pipe and about 100 feet from the edge of the dam crest. The netting would have to be about 40 feet high in the deepest section and 1200 feet long.
Under this alternative the leading edge of the existing peat which now represents a risk of detachment would be trimmed over the next 2 years. The edge of the peat would then be anchored using mechanical means. The remainder, 80 to 90%, of the peat/wetland/fen would be left intact.
The responsible official is Robert L. Storch, Forest Supervisor, 2250 Hwy. 50, Delta, Colorado 81416.
The decision to be made is whether or not to allow the entire peat body, or some portion of it, to be removed, and on what schedule; and what mitigation measures or operating restrictions (these may include timing, methods, and other measures to prevent environmental harm or unacceptable conflict in the use of the National Forest).
Initial scoping was conducted for this proposal during August and early September of 2000. Letters inviting comments on the proposal were sent to parties known to be interested. A news release was issued and published in the Grand Junction Daily Sentinel. Also, a legal notice was run in that same newspaper (see project record). Seven letters were received in response, and a number of phone conversations were documented. From the response to scoping, as well as from correspondence with the Surface Creek Ditch Company, and the State of Colorado Division of Water Resources, over a number of years dealing with the peat problem at Kennicott, an initial set of issues were identified. The agency ID Team met and discussed the project and identified additional issues to be addressed. This list of preliminary issues will be supplemented following comment in response to this NOI.
The following issues have been identified as preliminary issues to be carried through the analysis: effects on the wetland/fen (including Threatened Endangered or Sensitive species of plants), dam safety, effects on water quality and water quantity, effects on aquatic and terrestrial wildlife (including Threatened, Endangered or Sensitive species), effects on the recreation setting and use of the area, effects on potential paleontological resources, road use/maintenance and access to Kennicott Slough Reservoir, and economics/cost of project.
Activities regarding management of this reservoir are governed in part by a special use authorizations held by the Surface Creek Ditch and Reservoir Company, and administered by the U.S.
This notice of intent initiates the scoping process which guides the development of the environmental impact statement.
A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21.
Forest Service, USDA.
Notice of meeting.
The North Mt. Baker-Snoqualmie Resource Advisory Committee (RAC) will meet on Thursday, June 6, 2002, at the Mt. Baker Ranger Station at 810 State Route 20, Sedro-Woolley, Washington 98284 (phone: 360-856-5700). The meeting will begin at 9 a.m. and last until approximately 3 p.m.
The purpose of the meeting will be to review projects under consideration for FY 2003 Title II funding under the Secure Rural Schools and Community Self-Determination Act. All North Mt. Baker-Snoqualmie Resource Advisory Committee meetings are open to the public. Interested citizens are encouraged to attend.
The North Mt. Baker-Snoqualmie Resource Advisory Committee advises Whatcom and Skagit Counties on projects, reviews project proposals, and makes recommendations to the appropriate USDA official for projects to be funded by Title II dollars. The North Mt. Baker-Snoqualmie Resource Advisory Committee was established to carry out the requirements of the Secure Rural Schools and Community Self-Determination Act.
Direct questions regarding this meeting to Jon Vanderheyden, Designated Federal Official, USDA Forest Service, Mt. Baker-Snoqualmie National Forest, 810 State Route 20, Sedro Woolley, Washington 98284 (360-856-5700, Extension 201).
Committee for Purchase from People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from Procurement List.
The Committee is proposing to add to the Procurement List products and services 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.
Comments must be received on or before: June 16, 2002.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Sheryl D. Kennerly, (703) 603-7740.
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 possible impact of the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice for each product or service will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. If approved, 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. Comments on this certification are invited.
Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government.
2. 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 have been proposed for deletion from the Procurement List:
Committee for Purchase from People Who Are Blind or Severely Disabled.
Additions to Procurement List.
This action adds to the Procurement List a product and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
June 16, 2002.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Sheryl D. Kennerly. (703) 603-7740.
On October 12, and December 21, 2001, and
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the product 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 product and services to the Government.
2. The action will result in authorizing small entities to furnish the product 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 product and services proposed for addition to the Procurement List.
Accordingly, the following product and services are added to the Procurement List:
This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts.
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Madeleine Clayton, Departmental Paperwork Clearance Officer, (202) 482-3129, Department of Commerce, Room 6608, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at MClayton@doc.gov).
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
Import Administration, International Trade Administration, Department of Commerce.
On December 4, 2001, the United States Court of International Trade (CIT) affirmed the Department of Commerce's final remand results of the antidumping duty administrative review of certain cut-to-length carbon steel plate from Belgium. As there is now a final and conclusive court decision in this action, we are amending our final results, and we will instruct the Customs Service to liquidate entries subject to the review.
May 17, 2002.
Mark Hoadley at (202) 482-0666, Office of AD/CVD Enforcement VII, Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 7866, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to Department of Commerce (Department) regulations refer to the regulations codified at 19 CFR part 351 (April 2001).
On January 20, 1998, the Department of Commerce (the Department) published its final results for the administrative review of certain cut-to-length carbon steel plate from Belgium for the period of review (POR) August 1, 1995 through July 31, 1996.
During the administrative review, the Department issued its standard and supplemental questionnaires to FAFER instructing FAFER to report expenses, including indirect selling expenses related to its U.S. sales. In its response to the questionnaire, FAFER did not identify these expenses in the manner, and with the specificity, requested by the Department.
FAFER first reported that there were no U.S. indirect selling expenses applicable to its one U.S. sale made during the POR: FAFER's questionnaire stated that “There were no cost of indirect selling expenses for the products under investigation that FAFER have incurred in the United States, either directly or indirectly.” FAFER's November 18, 1996 Questionnaire Response, Section C, at 35. In response to a supplemental questionnaire, FAFER added that indirect selling expenses had been allocated based on information in its Section D response.
Because FAFER's U.S. sale was made through an affiliate, the Department classified the sale as a constructed export price (CEP) sale, and the price for the sale had to be adjusted pursuant to section 772(d)(1) of the Act (19 U.S.C. § 1677a(d)(1)) to account for FAFER's direct and indirect selling expenses. FAFER had not reported these expenses needed to calculate CEP, and therefore the Department had to resort to facts available to fill in the missing information. In the
Pursuant to its receipt of the ClT's remand instructions, on September 6, 2001, the Department released its draft results of redetermination to the plaintiff and defendant-intervenors for comment.
In the
After reviewing parties comments, on October 1, 2001, the Department issued its final remand results.
On December 4, 2001, the CIT affirmed the Department's
Because no further appeals have been filed and there is now a final and conclusive decision in the CIT proceeding, effective as of the publication date of this notice, we are amending the
Accordingly, the Department will instruct the Customs Service to assess antidumping duties on all appropriate entries of subject merchandise in accordance with these amended final results.
The Department has not conducted a review of this order for any review period subsequent to the review period at issue (August 1, 1995 through July 31, 1996). Therefore, the following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of certain cut-to-length carbon steel plate from Belgium entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for FAFER will be the rate shown above; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate established for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and, (4) for all other producers and/or exporters of this merchandise, the cash deposit rate shall be the rate established in the LTFV investigation, which is 6.75 percent.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Extension of Time Limit for Final Results of Five-Year (“Sunset”) Review of the Suspended Antidumping Duty Investigation on Fresh Tomatoes from Mexico.
The Department of Commerce (“the Department”) is extending the time limit for final results in the full sunset review of the suspended antidumping duty investigation on fresh tomatoes (“tomatoes”) from Mexico. We are extending the full sunset review of the suspended antidumping duty investigation to appropriately address issues relevant in the Department's on-going re-negotiation of the suspended agreement on tomatoes from Mexico. The Department intends to issue final results of this sunset review not later than August 27, 2002.
May 17, 2002.
James P. Maeder or Martha V. Douthit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3330 or (202) 482-5050, respectively.
On October 1, 2001, the Department initiated (66 FR 49926 ) a sunset review of the suspended antidumping investigation on tomatoes from Mexico pursuant to section 751(c) of the Tariff Act of 1930, as amended ( “the Act”). On the basis of the notice of intent to participate filed on behalf of domestic interested parties, and adequate substantive comments filed on behalf of the domestic interested parties and respondent interested parties, the Department determined that a full (240 day) sunset review was warranted of this suspended antidumping duty investigation.
In a sunset review, the Department normally will issue its final results not later than 240 days after the date of publication in the Federal Register of the notice of initiation in accordance with 19 CFR 351.218 (f)(3)(i). However, if the Secretary determines that a full sunset review is extraordinarily complicated under section 751(c)(5)(C) of the Act, the Secretary may extend the period for issuing final results by not more than 90 days (see section 751 (c)(5)(B) of the Act).
We find this case to be extraordinarily complicated due to issues related to the on-going re-negotiation of the suspension agreement from Mexico. Therefore, we determine it appropriate to take the maximum amount of time allowed under the statute to conduct this sunset review. For this reason we are extending the period for issuing final results by 90 days. Thus, the Department intends to issue the final results on tomatoes from Mexico, not later than August 27, 2002, in accordance with section 751(c)(5)(B) of the Act.
Import Administration, International Trade Administration, U.S. Department of Commerce
Notice of Amended Final Results of Antidumping Duty
On August 27, 2001, the United States Court of International Trade (“CIT”)affirmed the remand determination of the 1994-95 administrative review for Companhia Ferroligas Minas Gerais-Minasligas (“Minasligas”), Companhia Brasilerira Carbureto de Calcio (“CBCC”), Eletrosilex Belo Horizonte (“Eletrosilex”), and Rima Industrial S/A (“RIMA”) by the Department of Commerce (“the Department”) arising from the antidumping duty order on silicon metal from Brazil.
May 17, 2002.
Marlene Hewitt, Antidumping/Countervailing Duty Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W.,Washington DC 20230; telephone (202) 482-1385.
On July 31, 1991 the Department issued an antidumping duty order on silicon metal from Brazil.
On August 18, 1997, the U.S. Court of International Trade (“CIT”) issued an order directing the Department to consider the alleged ministerial errors and correct any ministerial errors identified in the allegations and contained in the
On April 9, 1999 the CIT issued an order remanding to the Department the Amended Final Results.
On September 23, 1999, the Department filed its redetermination on remand.
On August 27, 2001, the CIT sustained the Department's redetermination on remand.
CBCC timely appealed the CIT's judgment. On January 15, 2002 the CIT stayed its judgment and extended the injunction solely in respect to CBCC's entries.
Litigation in this case is final and conclusive for Minasligas, Eletrosilex, CCM, and RIMA. We are therefore amending our final results of review for the period July 1, 1994 through June 30, 1995.
The revised weighted-average margin for the above companies are as follows:
Accordingly, the Department will determine, and the U.S. Customs Service (“Customs”) will assess, antidumping duties on all entries of subject merchandise from Minasligas, Eletrosilex, CCM, and RIMA, in accordance with these amended final results. For assessment purposes, we have calculated importer-specific duty assessment rates for each class or kind of merchandise based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total quantity of sales examined. The Department will issue appraisement instructions directly to Customs. The above rate will not affect Minasligas, Eletrosilex, CCM, and RIMA's cash deposit rates currently in effect, which continue to be based on the margins found to exist in the most recently completed review.
This notice is published in accordance with sections 751(a)(1) and 777(i) of the Tariff Act (19 U.S.C. 1675(a)(1) and 1677f(i)) and 19 CFR 351.221.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Advisory Panel in May 2002. Recommendations from the committee will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will held on Friday, May 31, 2002, at 9:30 a.m.
The meeting will be held at the Sheraton Ferncroft, 50 Ferncroft Road, Danvers, MA 01923; telephone: (978) 777-2500.
Paul J. Howard, Executive Director, New England Fishery Management Council; (978) 465-0492.
The Groundfish Advisory Committee will meet to review the final report of the Council's Capacity Committee. This report suggests alternatives for reducing fishing capacity in the groundfish fleet. The Advisors have been asked to comment on the proposed measures, including whether they will make rationale business sense for those vessel owners who may choose to take advantage of the alternatives. The Advisors will develop recommendations which will be reported to the Groundfish Committee and the full Council at a later date. The Advisory Panel may also address alternatives under development for Amendment 13 to the Northeast Multispecies Fishery Management Plan (FMP). Any recommendations of the Panel will be considered by the Groundfish Committee at a future date.Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of meetings of the North Pacific Fishery Management Council (Council) and its advisory committees.
The North Pacific Fishery Management Council (Council) and its advisory committees will hold public meetings June 3-12, 2002, in Dutch Harbor, AK.
The Council’s Advisory Panel will begin at 8 a.m., Monday, June 3, and continue through Saturday, June 8, 2002. The Scientific and Statistical Committee will begin at 8 a.m. on Monday, June 3, and continue through Wednesday, June 5, 2002.
The Council will begin its plenary session at 8 a.m. on Wednesday, June 5, continuing through noon Wednesday, June 12. All meetings are open to the public except executive sessions.
The Grand Aleutian Hotel, 498 Salmon Way, Dutch Harbor, AK 99692.
Council staff, telephone: 907-271-2809.
Council Plenary Session: The agenda for the Council’s plenary session will include the following issues. The Council may take appropriate action on any of the issues identified.
1. Reports:
(a) Executive Director's Report.
(b) State Fisheries Report by Alaska Dept. of Fish and Game.
(c) NMFS Management Report.
(d) NMFS & U.S. Coast Guard Enforcement Surveillance reports.
2. Gulf of Alaska Groundfish Rationalization: Receive committee report and provide direction, as necessary.
3. Essential Fish Habitat: Receive committee report and provide direction, as necessary.
4. Bering Sea/Aleutian Islands (BSAI) Crab Rationalization:
(a) Identify preferred alternative for rationalization.
(b) Finalize alternatives for the Environmental Impact Statement for the BSAI King and Tanner Crab Fishery Management Plan.
5. Community Development Quotas: Final action on alternatives for program policy changes.
6. Draft Programmatic Groundfish Supplemental Environmental Impact Statement: finalize alternatives for analysis.
7. Steller Sea Lion Issues: final action on two proposed amendments.
8. American Fisheries Act:
(a) Initial review of improved retention/utilization adjustments.
(b) Final action on single geographic location amendment.
(c) Review committee report on pollock bycatch measures, if available, and provide further direction.
9. Research Priorities: review and recommend research priorities.
10. Groundfish Management:
(a) Initial review of proposed changes to the annual harvest specification process.
(b) Review workplan and provide direction for an analysis of differential gear impacts.
(c) Final action on alternatives to allocate BSAI Pacific cod harvests between pot catcher processors and pot catcher vessels.
11. Review staff tasking and provide direction.
12. Discuss annual management cycle. Scientific and Statistical Committee (SSC): The SSC agenda will include the following issues:
1. Research priorities (Item #9 on the Council agenda)
2. Harvest specification process (Item #10(a) on the Council agenda)
3. Draft Groundfish Programmatic SEIS (Item #6 on the Council agenda)
4. Review data collection information.
5. Review impacts methodology. Advisory Panel: The Advisory Panel will address the same agenda issues as the Council, with the exception of the Reports under Item #1 of the Council agenda.
Although non-emergency issues not contained in this agenda may come before these groups for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, these issues may not be the subject of formal action during the meeting. Action will be restricted to those issues specifically identified in the agenda listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council’s intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Helen Allen at 907-271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of law enforcement committee meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Executive Committee in Charleston, SC.
The meeting will take place on June 3-4, 2002.
The meeting will be held at the Town & Country Inn, 2008 Savannah Highway, Charleston, SC 29407; telephone: 843-571-1000; fax: 843-766-9444.
Kim Iverson, Public Information Officer; telephone: 843-571-4366; fax: 843-769-4520.
The Executive Committee will meet from 1:30 p.m. until 5 p.m. on June 3, 2002 (closed session), and again from 8:30 a.m. until 1 p.m. on June 4, 2002.
The Committee will meet in closed session on Monday, June 3, to receive legal briefing on recent court rulings regarding bycatch, overfished species and other issues and how they will affect Council actions. On Tuesday, June 4, the Executive Committee will meet in open session to discuss a request from the Secretary of Commerce for a response from the Council regarding a recent petition for rulemaking on bycatch (Federal Register Notice, 67 FR 19154, April 18, 2002). In addition, the Committee will discuss avenues for moving forward with fishery management plans and amendments currently being developed for submission to the Secretary of Commerce relevent to recent court rulings affecting fisheries management.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council’s intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit amendment.
Notice is hereby given that Dr. Terrie Williams, Department of Biology, University of California at Santa Cruz, Santa Cruz, CA 95064 has been issued an amendment to scientific research Permit No. 984-1587-00, as amended by Permit No. 984-1587-01. The permit number has been changed to 984-1587-02 to reflect that the permit has been amended.
The amendment and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376.
Amy Sloan or Ruth Johnson, (301) 713-2289.
On May 7, 2002, notice was published in the
The permit amendment authorizes extension of holding and research on three female California sea lions (
Department of the Air Force, DoD.
Notice of meeting.
Pursuant to Public Law 92-463, notice is hereby given of the forthcoming meeting of the Operational Architecture Panel from the Predictive Battlespace Awareness (PBA) to improve Military Effectiveness Study. The purpose of the meeting is to allow the SAB and study leadership to further discuss operational architecture issues at a classified level. This meeting will be closed to the public.
28-30 May 2002.
(TBD) Wilson Blvd, Rosslyn VA 20330.
Colonel Marian Alexander, Air Force Scientific Advisory Board Secretariat, 1180 Air Force Pentagon, Rm 5D982, Washington DC 20330-1180, (703) 697-4811.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before July 16, 2002.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Joseph Schubart at (202) 708-9266 or via his Internet address
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before June 17, 2002.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW, Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 57.
Burden Hours: 3,306.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at her Internet address
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before June 17, 2002.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW, Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 220.
Burden Hours: 272.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Jacqueline Montague at (202) 708-5359 or via her Internet address
Take notice that on May 7, 2002, of LG&E Capital Trimble County LLC (LCTC) filed an application requesting acceptance of its proposed Market-Based Rate Tariff (Tariff), waiver of certain regulations, and blanket approvals. The Tariff would authorize LCTC, inter alia, to engage in wholesale sales of capacity, energy, certain ancillary services, and firm transmission rights to eligible customers at market-based rates.
Any person desiring to intervene or to protest this filing 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). Protests will be considered by the Commission in determining the appropriate action to be
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission's) regulations, the Office of Energy Projects has reviewed the application dated August 30, 2000, requesting the Commission's authorization to issue a new license for the existing Bartholomew Hydroelectric Project, and has prepared an Environmental Assessment (EA) for the proposed and alternative actions. The subject project is located within Bartholomew Canyon and on Hobble Creek, in Utah County, Utah. The project is partially situated on federal lands within the Uinta National Forest.
Copies of the EA can be viewed at the Commission's Public Reference Room, Room 2A, 888 First Street, NE., Washington, DC 20426, or by calling (202) 208-1371. The document also may be viewed on the Web at
Any comments on the EA should be filed within 45 days from the date of this notice and should be addressed to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please affix “Bartholomew Hydroelectric Project, No.2031-046” to the first page of your comments. All timely filed comments will be considered in any Commission order addressing the proposed new license.
If you have any questions concerning this matter, please telephone the Commission's Environmental Coordinator for the Bartholomew Hydroelectric Project at (202) 219-2780 or contact him by E-mail at
The Federal Energy Regulatory Commission (the Commission), hereby gives notice that it intends to discontinue updating its Commission Issuance Posting System (CIPS), Records Information Management System (RIMS) and its Docket Sheet System on the web. As detailed in the notice of March 3, 2002 in the referenced docket, the Commission intends to combine these three online systems into a single online system called the Federal Energy Regulatory Records Information System (FERRIS).
This notice announces the coming availability of the new system. The Commission will start updating FERRIS with current issuances (CIPS data only) on or about May 20, 2002. On or about June 1, 2002, the Commission will complete the conversion of RIMS files and will discontinue updating CIPS, RIMS and Docket Sheets. Please refer to the Commission's website for the announcement of the exact dates these systems will no longer be updated.
To familiarize the public with the features of the new system, the Commission is holding demonstrations and classes. Dates for these events, held at the Commission's headquarters and through the web, are announced under the link, Demo's & Classes, on the FERRIS introductory page on the Commission's website,
On May 28, 2002, from 10 a.m. to 12 p.m. Eastern Daylight Time, there will be a state-federal regional panel in the form of a teleconference for New England and New York. Commissioners and staff from state regulatory agencies, the Federal Energy Regulatory Commission, and comparable Canadian national or provincial agencies will participate in the panel. It is established pursuant to the Order Announcing the Establishment of State-Federal Regional Panels to Address RTO Issues, Modifying the Application of Rule 2201 in the Captioned Dockets, and Clarifying Order No. 607, 97 FERC ¶ 61,182 (2001),
The participants have proposed the following agenda:
(1) The cost-benefit study on regional transmission organizations to be released May 14, 2002, by the New England and New York Independent System Operators.
(2) The geographic scope of regional transmission organizations in relation to New England.
(3) The merger of the New England and New York Independent System Operators.
(4) Governance of regional transmission organizations, including selection of board members and independence.
(5) Market monitoring.
The panel discussion will be transcribed, and the transcript will be placed in the captioned dockets. Ace-Federal Reporters will provide copies of the transcript at cost. The phone
For additional information, please contact: Sarah McKinley, State Relations, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 208-2016,
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) 564-7167.
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 12, 2002, (67 FR 17992).
Construction, Intersection Reconstruction, New Bridges Construction and Bridge Rehabilitation, Funding, Town of Erwin, Steuben County, NY.
Environmental Protection Agency (EPA).
Notice.
EPA will hold a workshop focusing on the ecological risk assessment of Bt crops to non-target invertebrate. The workshop will involve a small expert group (about 20 people). Information from this workshop will be used to assist the Agency in the design and evaluation of effective insect resistance management strategies for Bt corn. EPA will provide a publically-available workshop report after the workshop is completed.
The meeting will be held on June 3 - 4 2002, from 8 am to 5 pm.
The meeting will be held at EPA, Crystal Mall II, Room 1126, 1921 Jefferson Davis Hwy, Arlington, VA 22202. Space is limited. Requests to participate may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit III. of the
John Glaser, National Risk Management Research Laboratory, Environmental Protection Agency, 26 W. King Dr., Cincinnati, OH 45268; telephone number: (513) 569-7568; fax number: (513) 487-2511; e-mail address:glaser.john@epa.gov.
This action is directed to the public in general. This action may, however, be of interest to: Registrants and users of Bt crops under the Federal Food, Drug and Cosmetic Act (FFDCA), or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) as well as non-users of Bt crops and the public. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
You may submit a request to participate in this meeting through the mail, in person, or electronically. Do not submit any information in your request that is considered CBI. Requests to participate in the meeting must be received on or before June 17, 2002. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-2002-0062 in the subject line on the first page of your request.
1.
2.
3.
Environmental protection, Bt crops.
Environmental Protection Agency ( EPA).
Notice of meeting.
Under the Federal Advisory Act, Public Law 92-463, EPA gives notice of a Meeting of the Gulf of Mexico Program (GMP) Citizens Advisory Committee (CAC).
The CAC Meeting will be held on Tuesday, June 11, 2002, from 1 p.m. to 5:30 p.m and on Thursday, June 13, 2002, from 1 to 3 p.m. The CAC will participate as members of the GMP Focus Teams in the Comprehensive Meeting on June 12, 2002, from 9:00 a.m. to 5:00 p.m. and on Thursday, June 13, 2002, from 8:30 a.m. to 11:30 a.m.
The meeting will be held at the Hilton New Orleans Riverside Hotel, Poydras at the Mississippi River, New Orleans, Louisiana. (504-561-0500)
Gloria D. Car, Designated Federal Officer, Gulf of Mexico Program Office, Mail Code EPA/GMPO, Stennis Space Center, MS 39529-6000 at (228) 688-2421.
Proposed agenda is attached.
The meeting is open to the public.
Environmental Protection Agency (EPA).
Notice of meeting.
Under the Federal Advisory Act, Public Law 92-463, EPA gives notice of a Comprehensive Meeting of the Gulf of Mexico Program (GMP) Focus Teams (Public Health, Nutrient Enrichment, Habitat, and Invasive Species).
The Meeting will be held on Wednesday, June 12, 2002, from 9 a.m. to 11:30 a.m. (Plenary Session) and 1 p.m. to 5 p.m. (Focus Team Meetings), and on Thursday, June 13, 2002, from 9 a.m. to 3 p.m.
The meeting will be held at the Hilton New Orleans Riverside Hotel, Poydras at the Mississippi River, New Orleans, Louisiana. (504-561-0500).
Gloria D. Car, Designated Federal Officer, Gulf of Mexico Program Office, Mail Code EPA/GMPO, Stennis Space Center, MS 39529-P6000 at (228) 688-2421.
Proposed agenda is attached.
The meeting is open to the public.
Federal Communications Commission.
Notice; solicitation of comments.
This document seeks comments on the Guam Cellular and Paging, Inc. d/b/a Saipancell (Saipancell) petition seeking designation of eligibility to receive federal universal service support for service offered on the island of Saipan in the Commonwealth of the Northern Mariana Islands.
Comments are due on June 17, 2002. Reply comments are due on July 1, 2002.
See Supplementary Information section for where and how to file comments.
Mark G. Seifert, Deputy Chief, Telecommunications Access Policy Division, Wireline Competition Bureau, (202) 418-7400, TTY: (202) 418-0484.
On February 19, 2002, Guam Cellular and Paging, Inc. d/b/a Saipancell (Saipancell) filed with the Commission a petition under section 214(e)(6) seeking designation as an eligible telecommunications carrier (ETC) to receive federal universal service support for service offered on the island of Saipan in the Northern Mariana Islands. The Commission issued a Public Notice, 67 FR 13332 (March 22, 2002), on March 4, 2002 seeking comment on the Saipancell Petition. Saipancell subsequently filed an amendment to its petition and at Saipancell's direction, the Commission is tolling the filing of the Saipancell Petition to April 15, 2002.
Saipancell contends that the CTC, which has jurisdiction over telecommunications in the Northern Mariana Islands, has provided an affirmative statement that it does not regulate commercial mobile radio service (CMRS) carriers, Saipancell meets all the statutory and regulatory prerequisites for ETC designation, and designating Saipancell as an ETC will serve the public interest.
Pursuant to § 54.207(c) of the Commission's rules, Saipancell also requests that the Commission redefine the service area of the incumbent rural local exchange carrier, Micronesian Telephone Corporation (MTC). MTC serves three islands in the Northern Mariana Islands—Saipan, Tinian, and Rota. Saipancell seeks redefinition of the MTC service area to enable Saipancell to be designated as an ETC only for the island of Saipan. The Wireline Competition Bureau seeks comment on the Saipancell Petition, including the requested service area redefinition. Parties that have already filed comments on the Saipancell Petition may, but are not required to, resubmit their comments.
The petitioner must provide copies of its petition to the CTC at the time of filing with the Commission. The Commission will also send a copy of this Public Notice to the CTC by overnight express mail to ensure that the CTC is notified of the notice and comment period.
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments as follows: comments are due June 17, 2002, and reply comments are due July 1, 2002. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.
Comments filed through the ECFS can be sent as an electronic file via the Internet to
Parties also must send three paper copies of their filing to Sheryl Todd, Telecommunications Access Policy Division, Wireline Competition Bureau, Federal Communications Commission, 445 Twelfth Street SW., Room 5-B540, Washington, DC 20554. In addition, commenters must send diskette copies to the Commission's copy contractor, Qualex International, Portals II, 445 Twelfth Street, SW., Room CY-B402, Washington, DC 20054.
Pursuant to 47 CFR 1.1206, this proceeding will be conducted as a permit-but-disclose proceeding in which
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, May 16, 2002 which is scheduled to commence at 9:30 a.m. in Room TW-C305, at 445 12th Street, SW., Washington, DC.
Additional information concerning this meeting may be obtained from Maureen Peratino or David Fiske, Office of Media Relations, telephone number (202) 418-0500; TTY 1-888-835-5322.
Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Qualex International (202) 863-2893; Fax (202) 863-2898; TTY (202) 863-2897. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio tape. Qualex International may be reached by e-mail at
This meeting can be viewed over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. For information on these services call (703) 834-1470 Ext. 10. The audio portion of the meeting will be broadcast live on the Internet via the FCC's Internet audio broadcast page at
The Commission hereby gives notice of the filing of the following agreement(s) under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 962. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the National Customs Brokers and Forwarders Association of America, Inc. and the International Association of NVOCCs, Inc. (collectively, “Petitioners”) have petitioned the Commission for an investigation under section 11(c) of the Shipping Act of 1984 (“Shipping Act”) of certain activities by the members of the Transpacific Stabilization Agreement (“TSA”).
In particular, Petitioners request that the Commission determine whether TSA's members have violated the Shipping Act through discriminatory service contracting practices with regard to traffic moving in the eastbound transpacific trades that intentionally discriminate against Ocean Transportation Intermediaries (“OTIs”) in violation of sections 10(c)(7) and 10(c)(8) of the Shipping Act.
In support of this contention, Petitioners claim that TSA's members have refused to negotiate with OTIs or shippers' associations representing OTIs until such time as they completed negotiations and signed contracts with proprietary shippers. Petitioners also claim that TSA's members have agreed to charge OTIs substantially higher rates than are being assessed against proprietary shippers for exactly the same services, regardless of volume or other lawful transportation factors. Petitioners state that this is being done through a General Rate Increase (“GRI”) and Peak Season Surcharge (“PSS”) that are mandatory for OTI service contracts, but waived for contracts with beneficial cargo owners.
Petitioners further assert that TSA members' refusal to negotiate or enter into service contracts with OTIs at the same time as proprietary shippers constitutes an unreasonable refusal to deal in violation of section 10(c)(1) of the Shipping Act. Petitioners also request that the Commission determine whether these practices are causing unreasonable increases in transportation cost for OTIs, their customers and the shipping public within the meaning of section 6(g) of the Shipping Act.
Petitioners also contend that TSA and its members appear to be abusing the “voluntary guidelines” authorized by section 5(c) of the Shipping Act by failing to file their true agreements with the Commission, and are thus operating under an unfiled agreement in violation of section 10(a)(3) of the Shipping Act.
If the Commission's investigation concludes that Shipping Act violations have occurred, Petitioners urge the Commission to: (1) Issue sanctions against TSA and its members pursuant to section 13 of the Shipping Act for violations found; (2) require TSA member lines to pay reparations pursuant to section 11(g) of the Shipping Act to those OTIs who have been damaged; and (3) seek appropriate injunctive relief to enjoin further operation of TSA pursuant to sections 6(g) and (h) of the Shipping Act.
The Petition was filed under Rule 69 of the Commission's Rules of Practice and Procedure, 46 CFR 502.69, and states that it was served upon counsel for TSA. Replies to the petition, as provided by Rule 69 and Rule 74, 46 CFR 502.74, are due May 28, 2002. In order for the Commission to make a thorough evaluation of the petition, the Commission is also inviting interested persons to submit their comments on the petition no later than May 28, 2002. Comments shall consist of an original and 15 copies, or, if e-mailed, as an attachment in WordPerfect 8, Microsoft Word 97, or earlier versions of these applications; be directed to the Secretary, Federal Maritime
Copies of the petition are available at the Office of the Secretary of the Commission, 800 N. Capitol Street, NW., Room 1046, by telephone request at 202-523-5725 or through email request directed to
Parties participating in this proceeding may elect to receive service of the Commission's issuances in this proceeding through e-mail in lieu of service by U.S. mail. A party opting for electronic service shall advise the Office of the Secretary in writing and provide an e-mail address where service can be made.
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 application 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 www.ffiec.gov/nic/.
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 June 10, 2002.
Board of Governors of the Federal Reserve System, May 13, 2002.
In accordance with § 271.25 of its rules regarding availability of information (12 CFR part 271), there is set forth below the domestic policy directive issued by the Federal Open Market Committee at its meeting held on March 19, 2002.
The Federal Open Market Committee seeks monetary and financial conditions that will foster price stability and promote sustainable growth in output. To further its long-run objectives, the Committee in the immediate future seeks conditions in reserve markets consistent with maintaining the federal funds rate at an average of around 1
By order of the Federal Open Market Committee, May 13, 2002.
Federal Supply Service, General Services Administration.
Notice.
This notice announces the cancellation of the following Standard form:
SF 1203, U.S. Government Billing of Lading-Privately Owned Personnel Property (7-part continuous fee version) (identified by NSN 7540-01-096-8489). New regulations require Federal agencies to use the Transportation Service Provider's bill of lading or pay with a government purchase card (
General Services Administration, Forms Management, (202) 501-0581.
Effective May 17, 2002.
Sec. 4314(c)(1) through (5) of Title 5 U.S.C., requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel management, one or more Performance Review Boards. The board shall review and evaluate the initial appraisal by the supervisor of a senior executive's performance, along with any recommendations to the appointing authority relative to the performance of the senior executive. The Performance Review Board also shall make recommendations as to whether the career executive should be recertified, conditionally recertified, or not recertified.
As provided under Section 601 of the Economy Act of 1932, amended 31 U.S.C. 1525, the General Services Administration, through its Agency Liaison Division, provides various personnel management services to a number of diverse Presidential commissions, committees, boards and other agencies through reimbursable administrative support agreements. This notice is processed on behalf of the client agencies, and it supersedes all other notices in the
The members whose names appear on the Performance Review Board standing roster to serve client agencies are:
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) and the Assistant Secretary for Health have taken final action in the following case:
Specifically PHS found that Mr. Morrow falsified data relating to the study of the mechanisms of protein transport using
Mr. Morrow reported the falsified and fabricated data in: (1) Laboratory group meetings; (2) a poster presentation at the American Society for Cell Biology meeting held in December 2000, and (3) a draft manuscript that he was preparing. Mr. Morrow also provided falsified data to his mentor, who unknowingly included it in a draft of NIGMS, NIH, application 2 R01 GM54428-05A2, “Elucidation of the mechanisms of
Mr. Morrow has entered into a Voluntary Exclusion Agreement in which he has voluntarily agreed for a period of three (3) years:
(1) To exclude himself from any contracting or subcontracting with any agency of the United States Government and from eligibility for, or involvement in, nonprocurement transactions (
(2) To exclude himself from serving in any advisory capacity to PHS, including but not limited to service on any PHS advisory committee, board, and/or peer review committee, or as a consultant.
Director, Division of Investigative Oversight, Office of Research Integrity, 5515 Security Lane, Suite 700, Rockville, MD 20852. (301) 443-5330.
Centers for Disease Control and Prevention, Department of Health and Human Services (DHHS).
Opportunities for collaboration for evaluation of topical microbicides.
The Centers for Disease Control and Prevention (CDC), National Center for HIV, STD, and TB Prevention (NCHSTP), Division of HIV/AIDS Prevention-Surveillance and Epidemiology (DHAP-SE), Epidemiology Branch (EpiBr), announces an opportunity for collaboration to evaluate the safety and preliminary efficacy of topical microbicides designed for vaginal and/or rectal application to reduce HIV transmission. These evaluations will include in-vitro assays, macaque studies, and phase I/phase II trials in women and men.
The Division of HIV/AIDS Prevention-Surveillance and Epidemiology (DHAP-SE) of the National Center of HIV, STD, and TB Prevention (NCHSTP) at the Centers for Disease Control and Prevention (CDC) of the Department of Health and Human
Confidential proposals, preferably 10 pages or less (excluding appendices), are solicited from companies with patented or licensed agents which have undergone sufficient preclinical testing to be prepared to submit an Investigational New Drug (IND) application to the FDA within six months of submitting the proposal.
This Notice will be open indefinitely.
Formal proposals should be submitted to Jeff Efird, MPA, Epidemiology Branch, Division of HIV/AIDS Prevention—Surveillance and Epidemiology, NCHSTP, CDC, 1600 Clifton Road, Mailstop E-45, Atlanta, GA 30333; Phone: (direct) 404-639-6136, (office) 404-639-6130; Fax: 404-639-6127; e-mail:
One mission of the Epidemiology Branch (EpiBr) of DHAP-SE/NCHSTP is to develop and evaluate biomedical interventions to reduce HIV transmission. To this end, the EpiBr is establishing contracts to conduct phase I and phase II trials of topical microbicides. EpiBr also funds research in the Division of AIDS, STD, and TB Laboratory Research (DASTLR) of the National Center for Infectious Diseases (NCID) at CDC and with external laboratories to conduct macaque studies and in-vitro studies in support of human microbicide trials. The goal of these efforts is to provide scientific and technical expertise and key resources for the evaluation of topical microbicides through late preclinical, phase I and phase II safety and phase II efficacy clinical trials.
EpiBr now seeks potential collaborators having licensed or patented agents for use as vaginal and/or rectal microbicides which:
(1) Have laboratory or animal model evidence of anti-HIV activity;
(2) Have been formulated for vaginal or rectal application;
(3) Are not entering phase III clinical trial in the next 12 months;
(4) Have sufficient preclinical data to submit an IND application within approximately six months following submission of proposal; and
(5) Have manufacturing arrangements for production of clinical trial-grade product (and applicator if necessary) under Good Manufacturing Process (c-GMP) standards.
The NCHSTP anticipates that its role may include, but not be limited to, the following:
(1) Providing intellectual, scientific, and technical expertise and experience to the research project;
(2) Planning and conducting preclinical (in-vitro and in-vivo) research studies of the agent and interpreting results;
(3) Publishing research results;
(4) Depending on the results of these preclinical investigations, NCHSTP may elect to conduct additional research with macaques to evaluate safety and/or efficacy proof-of-concept; and
(5) Depending on the results of preclinical and/or macaque studies and FDA approval, NCHSTP may elect to conduct phase I/II clinical trials of the agent.
The NCHSTP anticipates that the role of the successful collaborator(s) will include the following:
(1) Providing intellectual, scientific, and technical expertise and experience to the research project;
(2) Participating in the planning of research studies, interpretation of research results, and as appropriate, joint publication of conclusions;
(3) Providing NCHSTP access to necessary proprietary technology and/or data in support of the research activities; and
(4) Providing NCHSTP clinical grade (c-GMP) agent for use in preclinical and clinical studies covered in this collaboration.
Other contributions may be necessary for particular proposals.
In addition to evidence of the ability to fulfill the roles described above, proposals submitted for consideration should address, as best as possible and to the extent relevant to the proposal, each of the following:
(1) Data on the in-vitro anti-HIV activity of the agent;
(2) Animal and other data on the safety of the agent when applied to mucosal surfaces;
(3) Data on the effects of the agent on vaginal and/or rectal commensal microbial organisms; and
(4) Data on the in-vitro activity of the agent against other sexually transmitted organisms.
Centers for Medicare and Medicaid Services, HHS.
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
Centers for Medicare and Medicaid Services, HHS.
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) (formerly known as the Health Care Financing Administration (HCFA)), 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.
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
Centers for Medicare and Medicaid Services, HHS.
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) (formerly known as the Health Care Financing Administration (HCFA)), 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
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
Centers 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) (formerly known as the Health Care Financing Administration (HCFA)), 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.
Centers for Medicare and Medicaid Services, HHS.
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) (formerly known as the Health Care Financing Administration (HCFA), 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,
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web Site address at
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice; revision to a meeting agenda.
This notice announces a revision to the agenda items to be discussed at the June 3, 2002 Practicing Physicians' Advisory Council (the Council). An agenda item will be added in order to accommodate a discussion and to receive testimony for the Council concerning the Emergency Medical Treatment and Labor Act (EMTALA). In accordance with section 10(a) of the Federal Advisory Committee Act, the meeting is open to the public.
The meeting is scheduled for June 3, 2002, from 8:30 a.m. until 5 p.m. e.d.t.
The meeting will be held in the Multipurpose Room at CMS Headquarters, 7500 Security Blvd., Baltimore, MD 21244-1850.
Persons wishing to attend this meeting must contact Diana Motsiopoulos, the Council Administrative Coordinator, at
Paul Rudolf, M.D., J.D., Executive Director, Practicing Physicians' Advisory Council, 7500 Security Blvd., Mail Stop C5-17-14, Baltimore, MD 21244-1850, 410-786-3379. News media representatives should contact the CMS Press Office, (202) 690-6145. Please refer to the CMS Advisory Committee's Information Line (1-877-449-5659, toll free)/(410-786-9379, local) or the Internet at
The following agenda topic has changed from the initial notice published on April 26, 2002 (67 FR 20803):
• Emergency Medical Treatment and Labor Act (EMTALA) has been added.
The revised agenda follows.
The meeting will commence with a Council update on the status of prior recommendations, followed by discussion and comment on the following agenda topics:
• Physician's Regulatory Issues Team (PRIT) update.
• Medicaid Overview.
• Evaluation & Management Guidelines.
• Update Health Insurance Portability & Accountability Act (HIPAA) Privacy Rule.
• Claims Processing.
• EMTALA.
• Beneficiary Access.
• Physician Fee Schedule.
For additional information and clarification, contact the Executive Director, listed under the “For Further Information Contact” section of this notice. Individual physicians or medical organizations that represent physicians wishing to make a 5-minute oral presentation on agenda issues should contact the Executive Director by 12 noon, May 24, 2002, to be scheduled. Testimony is limited to agenda topics only. The number of oral presentations may be limited by the time available. A written copy of the presenter's oral remarks must be submitted to Diana Motsiopoulos, Administrative Coordinator,
(Section 1868 of the Social Security Act (42 U.S.C. 1395ee) and section 10(a) of Pub. L. 92-463 (5 U.S.C. App. 2, section 10(a))
In compliance with the requirements of Section 350(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW.,
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 30 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice; withdrawal.
The Food and Drug Administration (FDA) is announcing the withdrawal of a draft guidance that was issued on August 27, 1999.
Devinder S. Gill, Center for Drug Evaluation and Research (HFD-623), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-5848.
In a notice published in the
After careful consideration of the comments received, FDA has decided to withdraw the draft guidance. The information and comments from the public raised scientific issues relating to the scope of the guidance and methodology for blend uniformity analysis in general, including the: (1) Adequacy of current blend sampling
An applicant or manufacturer must still comply with any applicable regulations regardless of the status of this guidance. For example, an application must include specifications and analytical methods to ensure the identity, strength, quality, purity, and bioavailability of the drug product (21 CFR 314.50(d)(1)(ii)(a)), and a manufacturer must monitor and validate the performance of processes that could be responsible for variability, including adequacy of mixing to ensure uniformity and homogeneity (21 CFR 211.110(a)(3)). An evaluation of uniformity of a blend may be necessary to fulfill such requirements.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Blood Donor Classification Statements, Paid or Volunteer Donor,” dated May 7, 2002. The guidance document provides guidance to FDA staff and industry for determining when blood or blood components should be labeled with a “paid donor” or “volunteer donor” classification statement. The document is intended to assist industry in determining when a donor incentive is considered a monetary payment, and to assist FDA employees in inspecting blood centers. This guidance finalizes the document entitled “Draft Compliance Policy Guidance for FDA Employees and Industry on Blood Donor Incentives,” published in the
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of this compliance policy guidance to the Division of Compliance Policy (HFC-230), Office of Regulatory Affairs, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. Send two self-addressed adhesive labels to assist the office in processing your requests. You may fax your request to 301-827-0852. See the
Submit written comments on the guidance document to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to http://www.fda.gov/dockets/ecomments.
Tom M. Chin, Division of Compliance Policy (HFC-230), Office of Regulatory Affairs, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-0410.
FDA is announcing the availability of a compliance policy guidance document entitled “Blood Donor Classification Statements, Paid or Volunteer Donor,” dated May 7, 2002. The guidance document provides information to industry and FDA employees regarding when a blood donor incentive would require the blood or blood component to be labeled with a “paid donor” or “volunteer donor” classification statement.
In the
The requirement for a donor classification statement applies only to blood and blood components intended for transfusion. It does not apply to blood and blood components intended for further manufacturing, such as Source Plasma.
If the donor receives an incentive other than cash, the incentive must be evaluated to determine if it is readily convertible to cash. This guidance document provides FDA employees and industry with the factors that FDA uses to evaluate incentives, and provides some examples of incentives that the Center for Biologics Evaluation and Research has evaluated in the past.
This guidance finalizes the draft guidance entitled “Draft Compliance Policy Guidance for FDA Employees and Industry on Blood Donor Incentives” (66 FR 3605). The title of the document was changed to more accurately reflect its contents.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). This guidance document represents the agency's current thinking on blood donor classification statements. 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.
The agency received a number of comments on the draft compliance policy guidance (66 FR 3605). All of the comments were considered when preparing the final document.
Some of the comments requested further guidance on blood donor incentives that was outside of the scope of this document. FDA will consider issuing further guidance on the subject of blood donor incentives in the future.
Interested persons may, at any time, submit written comments to the Dockets Management Branch (address above) regarding this guidance document. Two copies of any comments are to be submitted, except individuals may submit one copy. Comments should be identified with the docket number found in the brackets in the heading of this document. A copy of the document and received comments are available for public examination in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Persons with access to the Internet may obtain the document at http://www.fda.gov/ora/compliance_ref/cpg/default.htm.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “Special Protocol Assessment.” This guidance provides guidance for industry on procedures adopted by the Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER) to evaluate issues related to the adequacy (
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of the guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, or the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research, Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448, FAX 888-CBERFAX or 301-827-3844. Send two self-addressed adhesive labels to assist the office in processing your requests. Submit written comments to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Kim M. Colangelo, Center for Drug Evaluation and Research (HFD-2), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-5400, or
Robert A. Yetter, Center for Biologics Evaluation and Research (HFM-10), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448, 301-827-0373.
In the
Section 119(a) of the Food and Drug Administration Modernization Act of 1997 (the Modernization Act) (Public Law 105-115) amends section 505(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(b)) and directs FDA to allow sponsors to request special protocol assessment and for the agency to act on such requests. Moreover, in conjunction with the reauthorization of the Prescription Drug User Fee Act of 1992 in November 1997, FDA agreed to specific performance goals for special protocol assessment and agreement. The performance goals are summarized in an enclosure to a letter dated November 12, 1997, from the then Secretary of Health and Human Services, Donna E. Shalala, to Senator James E. Jeffords.
The procedures and policies described in this guidance were adopted by CDER and CBER for evaluating issues related to the adequacy (
In the
This level 1 guidance is being issued consistent with FDA's good guidance practices (21 CFR 10.115). The guidance represents the agency's current thinking on special protocol assessment in CDER and CBER. 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. The guidance will be updated as appropriate.
Interested persons may submit to the Dockets Management Branch (
Persons with access to the Internet may obtain the document at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the withdrawal of a draft guidance for industry entitled “Topical Dermatological Drug Product NDAs and ANDAs—In Vivo Bioavailability, Bioequivalence, In Vitro Release, and
Dale P. Conner, Center for Drug Evaluation and Research (HFD-650), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-5847.
In a notice published in the
The information and comments provided to FDA raised scientific concerns regarding the primary method, dermatopharmacokinetics (DPK), recommended in the draft guidance for documenting bioavailability and/or bioequivalence of topical dermatological drug products. The DPK method involves sampling of
The agency plans to explore the development of new methods and improvements in current methods for documenting the bioequivalence of topical dermatological drug products.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the meeting of the National Cancer Advisory Board.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
A portion of the meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4), and 552b(6), 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.
Any interested person may file written comments with the committee by forwarding the statement of the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance into the building by non-government employees. Persons without a government I.D. will need to show a photo I.D. and sign-in at the security desk upon entering the building.
Information is also available on the Institute's/Center home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended ( U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in section 553b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussion could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), 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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Arthritis and Musculoskeletal and Skin Diseases Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The 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/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), 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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), 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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), 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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Comments due date: July 16, 2002.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Wayne Eddins, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., L'Enfant Plaza Building, Room 8003, Washington, DC 20410.
Michael McCullough, Director, Office of Multifamily Development, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-1142, (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
The estimated total number of hours needed to prepare the information collection is 91 hours; the number of respondents is 15; the frequency of response is on occasion; and the number of hours per response is 4 hours for reporting and 2 hours for recordkeeping. One additional hour is added for what is customary and usual in conventional mortgage processing.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Comments Due Date: June 17, 2002.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office, Building, Washington, DC 20503; FAX number (202) 395-6974; E-mail Joseph_F._Lackey_Jr@OMB.EOP.GOV.
Wayne Eddins, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail Wayne_Eddins@HUD.gov; telephone (202) 708-2374. This is not a toll-free number. Copies of the proposed
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10 the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for 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.
Mark Johnston, room 7266, Department of Housing and Urban Development, 451 Seventh Street SW., 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 1-800-927-7588.
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, 1998 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 Brian Rooney, Division of Property Management, Program Support Center, HHS, room 5B-41, 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
For more information regarding particular properties identified in this notice (
Anchorage Field Office, Bureau of Land Management, DOI.
Supplementary Rule for Restriction of Certain Activities on Public Lands Managed by the Anchorage Field Office, Bureau of Land Management, Alaska.
This Supplementary Rule is necessary for the management of actions, activities, and use on public lands which may have, or are having, adverse impacts on persons using public lands, on property, and on resources located on public lands. The subject lands are utilized for a public boat launch, lawful hunting, and air boating and are adjacent to the heavily traveled Glenn Highway. This Supplemental Rule will be in effect from September 1, 2002, until such lands are conveyed to the State of Alaska.
While hunters, air boaters and other recreationists can schedule their use around published hunting seasons for safety reasons, they are not able to avoid random target shooting. Motorists on the Glenn Highway are not able to schedule their use of the highway. Local conditions such as heavy brush can reduce visibility and increase the hazard to other recreationists and motorists from target shooters. Recent incidents involving random target shooting are an endangerment to other users of this area and to motorists on the adjacent Glenn Highway. The discharge of fireworks increases the risk of wildfires. In
This Supplemental Rule does not apply to other lands, specifically State or Federal lands including State lands in the Palmer Hay Flats State Wildlife Refuge.
The affected lands are public lands administered by the Bureau Land Management, Anchorage Field Office, and are described as follows:
(1.0) Closure of public lands to discharge of fireworks and to the discharge of firearms except by licensed hunters during seasons administered by the Alaska Department of Fish and Game.
The following are prohibited:
(a). The discharge of fireworks.
(b). The discharge of firearms except by licensed hunters during seasons administered by the Alaska Department of Fish and Game.
(c). The use of ammunition containing lead shot.
(2.0) Exception:
(a). This regulation does not apply to the lawful hunting of game by licensed hunters during seasons administered by the Alaska Department of Fish and Game.
Peter J. Ditton, Anchorage Field Manager, BLM, Anchorage Field Office, 6881 Abbott Loop Road, Anchorage, Alaska 99507-2599 or call 907-267-1246.
National Park Service's, National Center for Recreation and Conservation and National Center for Cultural Resources, Department of the Interior.
Notice and request for comments.
The National Park Service (NPS) is proposing in 2002 to conduct surveys of recipients of services and/or assistance of the following programs: Rivers Trails, and Conservation Assistance Program (RTCA), Federal Lands to Parks Program (FLP), Partnership Wild and Scenic Rivers Program (PWSR), and the Historic Preservation Technical Assistance Program (HP). This survey will be conducted to meet the requirements of the 1995 Government Performance and Results Act (GPRA) and will be used to develop goals to improve effectiveness and public accountability of the respective programs.
Under the provisions of the Paperwork Reduction Act of 1995 and 5 CFR part 1320, Reporting and Record Keeping Requirements, the NPS invites public comment on these five proposed information collection requests (ICR). Comments are invited on: (1) The need for the information including whether the information has practical utility; (2) the accuracy of the reporting burden estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.
The NPS goal in conducting these surveys is to obtain information to help evaluate and improve its recreation and conservation assistance program and its historic preservation programs. There were no public comments received as a result of publishing in the
Public comments will be accepted on or before 30 days from the publication of this notice.
Office of Information and Regulatory Affairs of OMB, Attention Desk Officer for the Interior Department, Office of Management and Budget, Washington, DC 20530; and also to Dr. Michael A. Schuett (Voice: (304) 293-3721) x2415) (e-mail:
The OMB has up to 60 days to approve or disapprove the information collection but may respond after 30 days. Therefore, to ensure maximum consideration, OMB should receive public comments on or before 30 days from the publication of this notice.
Dr. Michael A. Schuett (Voice: (304) 293-3721)(e-mail:
United States International Trade Commission.
May 22, 2002 at 11 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meeting: none.
2. Minutes.
3. Ratification List.
4. Inv. No. 731-TA-932 (Final) (Certain Folding Metal Tables and Chairs from China)—briefing and vote. (The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on or before May 31, 2002.)
5. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
By Notice dated August 30, 2001, and published in the
The firm plans to import small reference standard quantities of finished commercial product from its sister company in Switzerland for sale to its customers for drug testing and pharmaceutical research and development.
No comments or objections have been received. DEA has considered the factors in Title 21, United States Code, section 823(a) and determined that the registration of Lipomed, Inc. to import the listed controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated Lipomed, Inc. on a regular basis to ensure that the company's continued registration is consistent with the public
Pursuant to section 1008 of the Controlled Substances Import and Export Act (21 U.S.C. 958(I)), the Attorney General shall, prior to issuing a registration under this section to a bulk manufacturer of a controlled substance in Schedule I or II and prior to issuing a regulation under section 1002(a) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with section 1301.34 of Title 21, Code of Federal Regulations (CFR), notice is hereby given that on December 19, 2001, Salsbury Chemicals, Inc., 1205 11th Street, Charles City, Iowa 50616-3466, made application by renewal to the Drug Enforcement Administration to be registered as an importer of phenylacetone (8501), a basic class of controlled substance listed in Schedule II.
The firm plans to import phenylacetone to manufacture amphetamines for distribution to its customers.
Any manufacturer holding, or applying for, registration as a bulk manufacturer of this basic class of controlled substance may file written comments on or objections to the application described above and may, at the same time, file a written request for a hearing on such application in accordance with 21 CFR 1301.43 in such form as prescribed by 21 CFR 1316.47.
Any such comments, objections or requests for a hearing may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: DEA
This procedure is to be conducted simultaneously with and independent of the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice at 40 FR 43745-46 (September 23, 1975), all applicants for registration to import a basic class of any controlled substance in Schedule I or II are and will continue to be required to demonstrate to the Deputy Assistance Administrator, Office of Diversion Control, Drug Enforcement Administration that the requirements for such registration pursuant to 21 U.S.C. 958(a), 21 U.S.C. 823(a), and 21 CFR 1301.34(a), (b), (c), (d), (e), and (f) are satisfied.
On May 21, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Steven J. Watterson, notifying him of an opportunity to show cause as to why the DEA should not deny his application for DEA registration, pursuant to 21 U.S.C. 823(f), for reason that Mr. Watterson was not licensed to conduct controlled substance research activity by the Tennessee Board of Pharmacy. The OTSC also notified Mr. Watterson that should no request for hearing be filed within 30 days, his right to a hearing would be deemed waived.
The OTSC was sent certified mail, return receipt requested, to the address listed on Mr. Watterson's application for DEA registration. DEA received a return receipt dated May 29, 2001, signed on behalf of Mr. Watterson. No request for a hearing or any other response was received from Mr. Watterson nor anyone purporting to represent him in this matter. Therefore, the Deputy Administrator, finding that (1) 30 days having passed since the receipt of the OTSC, and (2) no request for a hearing having been received, concludes that Mr. Watterson has waived his right to a hearing. Having completely reviewed the investigative file in this matter, the Deputy Administrator hereby enters his final order without a hearing, pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds that Mr. Watterson applied with the Tennessee Board of Pharmacy, Department of Commerce and Insurance (Board) for a research license pursuant to the Tennessee Legend Drug and Controlled Substance Research Act of 1984. By letter dated November 27, 2000, the Director of the Board informed Mr. Watterson that “we must deny the issuance of this license because the activity described in your application does not fall with [sic] the parameters delineated by the statute.”
The DEA does not have the statutory authority pursuant to the Controlled Substances Act to issue or to maintain a registration if the applicant or registrant is without state authority to handle controlled substances in the state in which he or she practices. See 21 U.S.C. 802(21), 823(f), and 824(a)(3). This prerequisite has been consistently upheld in prior DEA cases. See Graham Travers Schuler, M.D., 65 FR 50,570 (2000); Romeo J. Perez, M.D., 62 FR 16,193 (1997), Demetris A. Green, M.D., 61 FR 60,728 (1996); Dominick A. Ricci, M.D., 58 FR 51,104 (1993).
In the instant case, the Administrator finds the Government has presented undisputed evidence demonstrating that Mr. Watterson is not authorized to handle controlled substances in the State of Tennessee, the state in which he seeks to obtain a DEA registration. As a result, he is not entitled to a DEA registration in that State.
Since DEA does not have the statutory authority to issue Mr. Watterson a DEA registration because he is not currently authorized to handle controlled substances in Tennessee, the Deputy Administrator concludes that it is not necessary to determine whether Mr. Watterson's application is consistent with the public interest.
Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the application for a DEA Certificate of Registration
On June 4, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to James C. Womack, M.D., notifying him of an opportunity to show cause as to why the DEA should not deny his application for DEA registration, pursuant to 21 U.S.C. 823(f), for reason that Dr. Womack's registration would be inconsistent with the public interest. The OTSC also notified Dr. Womack that should no request for a hearing be filed within 30 days, his right to a hearing would be considered waived.
The OTSC was sent to the address listed on Dr. Womack's application for registration. DEA received a postal return receipt indicating that an individual had signed on behalf of Dr. Womack June 15, 2001. No request for a hearing or any other response was received from Dr. Womack nor anyone purporting to represent him in this matter. Therefore, the Deputy Administrator, finding that (1) 30 days having passed since receipt of the OTSC, and (2) no request for a hearing having been received, concludes that Dr. Womack has waived his right to a hearing. Having considered the complete investigative file in this matter, the Deputy Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds as follows. On November 14, 1985, Dr. Womack was granted a DEA Certificate of Registration as a practitioner in Schedules II through V.
On July 28, 1989, the Texas State Board of Medical Examiners (Board) entered an Agreed Order based on a finding that Dr. Womack was an impaired and recovering physician. The Board suspended his medical license, stayed the suspension, and placed Dr. Womack on probation for ten years, subject to certain terms and conditions. Among the conditions imposed by the Board was a requirement that Dr. Womack surrender his DEA and Texas State controlled substance registrations. Accordingly, Dr. Womack surrendered his DEA Certificate of Registration on August 31, 1989, as well as his Texas State registration.
Sometime in early 1990, the Board received information that Dr. Womack continued to issue prescriptions for controlled substances using the DEA registration of his father, also a licensed physician in the State of Texas. These prescriptions were not authorized by Dr. Womack's father. Subsequent investigation by DEA revealed that Dr. Womack had issued 701 prescriptions totaling 23,736 dosage units of controlled substances between the time of his surrender of his DEA and Texas State controlled substances registrations and September 5, 1990.
On May 12, 1991, Dr. Womack submitted an application to DEA for registration as a practitioner that was denied. 58 FR 7,248 (1993). On May 9, 1994, Dr. Womack was issued a DEA Certificate of Registration as a practitioner in Schedules II through V.
From February 1997 through January 1999, Dr. Womack was a supervising physician to a physician's assistant at a family practice clinic in Center, Texas, which was approximately 419 miles away from his primary practice in Brandera, Texas. During the time between April 16, 1998, and May 14, 1998, Dr. Womack sought treatment for substance abuse at La Hacienda Treatment Center in Hunt, Texas. During the time of Dr. Womack's treatment, DEA received information that prescriptions for controlled substances were issued and filled under Dr. Womack's DEA registration number. Subsequent information received by DEA indicated that Dr. Womack's physician assistant called in the prescriptions using Dr. Womack's DEA registration number without Dr. Womack's authorization.
On January 6, 1999, Dr. Womack was admitted to the emergency room at a hospital in San Antonio, Texas, and treated for chemical substance toxicity related to his abuse of alcohol and Soma, a non-controlled but addictive substance. On January 18, 1999, Dr. Womack again entered a program for the treatment of substance abuse, in the State of Oregon. As a result, Dr. Womack entered into an Agreed Order with the Board, in which Dr. Womack's medical license was suspended. The Board found,
On February 9, 1999, DEA investigators visited the family practice clinic in Center, Texas, and interviewed Dr. Womacks' physician assistant. DEA investigators found three triplicate prescription books, and one triplicate prescription book that contained ten blank pre-signed prescription forms, all in Dr. Womack's name. As a result of the above-described activity, Dr. Womack surrendered his DEA registration on March 16, 1999.
On March 31, 2000, the Board issued on Agreed Order staying the January 29, 1999, suspension of Dr. Womack's medical license, and placed Dr. Womack's medical license on probation for seven years subject to certain terms and conditions.
Pursuant to 21 U.S.C. 823(f), the Administrator may deny an application for a DEA Certificate of Registration if he determined that granting the registration would be inconsistent with the public interest. Section 823(f) requires the following factors be considered in determining the public interest:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
These factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied, see Henry J. Schwartz, Jr., M.D., 54 FR 16,422 (1989).
The Deputy Administrator finds with regard to factor one that, pursuant to the Agreed Order of the Texas State Board of Medical Examiners (Board) effective April 1, 2000, Dr. Womack's medical license was placed on seven year's probation, with extensive terms and conditions. Among the conditions is a requirement that Dr. Womack abstain from the consumption of alcohol, dangerous drugs, or controlled
The Deputy Administrator finds with regard to factors two and four that the investigative file reveals Dr. Womack has a history of non-compliance with applicable State and Federal laws relating to handling controlled substances. First, following the surrender of his DEA and Texas State controlled substances registrations, the Board found that Dr. Womack continued to issue prescriptions for controlled substances using the DEA registration of his father, also a licensed physician in the State of Texas, even though these prescription were not authorized by Dr. Womack's father. Subsequent investigation by DEA revealed that Dr. Womack had issued 701 prescriptions totaling 23,736 dosage units of controlled substances between the time of his surrender of his DEA and Texas State controlled substances registrations and September 5, 1990, in violation of 21 U.S.C. 843(a)(2) and 21 CFR 1306.03.
Next, while Dr. Womack was acting as a supervising physician to a physician's assistant at a family practice clinic in Center, Texas, approximately 419 miles away from his primary practice in Banderra, Texas, Dr. Womack sought treatment for substance abuse at La Hacienda Treatment Center in Hunt, Texas. During the time of his treatment, DEA received information that prescriptions for controlled substances were issued and filled under Dr. Womack's DEA registration number. Subsequent information received by DEA indicated that Dr. Womack's physician assistant called in the prescriptions using Dr. Womack's DEA registration number without Dr. Womack's authorization. These prescriptions were issued in violation of 21 CFR 1306.03 and 1306.04 as a result of Dr. Womack's failure to adequately monitor and exercise control over his assistant. When DEA investigators visited the family practice clinic in Center, Texas, to interview the physician's assistant, the investigators found three triplicate prescription books, and one triplicate prescription book that contained ten blank pre-signed prescription forms, all in Dr. Womack's name. As a result, Dr. Womack surrendered his DEA registration on March 16, 1999.
With regard to factor three, the investigative file contains no evidence that Dr. Womack has any record of convictions under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
With regard to factor five, the Deputy Administrator finds that the investigative file reveals substantial evidence that Dr. Womack has, as the Board found in its Agreed Order, a “history of substance abuse, relapse, and depression.” The Deputy Administrator finds that insufficient time has passed since the effective date of the Agreed Order to determine whether Dr. Womack has been able to sufficiently overcome his problems so as not to pose a serious threat to the public health and safety. The Deputy Administrator notes that no countervailing evidence was presented, despite the opportunity to do so.
Therefore, for the above-stated reasons, the Deputy Administrator concludes that it would be inconsistent with the public interest to grant Dr. Womack's application at this time.
Accordingly, the Deputy Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby order that the application for a DEA Certificate of Registration submitted by James C. Womack, M.D., be, and it hereby is, denied. This order is effective June 17, 2002.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each individual ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation contact Marlene Howze at (202) 693-4158 or Email
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for ESA, Office of Management and Budget, Room 10235, Washington, DC 20503 (202) 395-7316), within 30 days from the date of this publication in the
The OMB 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 submission of responses.
• 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 submission of responses.
The Department of Labor has submitted the following information collection request (ICR), utilizing emergency review procedures, to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). OMB approval has been requested by May 17, 2002. A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Department of Labor. To obtain a copy of this ICR, contact Darrin King on 202-693-4129 or email:
Comments and questions about the ICR listed below should be submitted to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Office of Disability Employment Policy, Office of Management and Budget, Room 10235, Washington, DC 20503 (202-395-7316), and received 5 days prior to the requested OMB approval date.
The Office of Management and Budget 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 clarify 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.
Notice.
The Department of Labor, 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 of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This 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.
Currently, the Office of Disability Employment Policy is soliciting comments concerning the proposed new collection of the data contained in the nomination packet for the Department of Labor's Inaugural New Freedom Initiative Award. A copy of the proposed information collection request (ICR) can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the addresses section below on or before July 16, 2002.
Submit comments to Lisa Lahrman, Office of Disability Employment, United States Department of Labor, 200 Constitution Avenue, NW, Room N-4720, Washington, DC 20210, 202-693-3047 (this is not a toll free number), Internet Address:
Lisa Lahrman, tel.(202) 693-3047 This is not a toll free number.
This collection of information (solicitation of nominations to receive an award) is planned to honor individuals, corporations and non-profit organizations which have been exemplary in furthering the employment-related objectives of President George W. Bush's New Freedom Initiative. The New Freedom Initiative reflects the Administration's commitment to increasing development and access to assistive and universally designed technologies, expanding educational opportunities, further integrating Americans with disabilities into the workforce, and helping to remove barriers to their full participation in community life. Legal authority for this collection can be found in both the New Freedom itself,
The Department of Labor 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,
To support ODEP's mission and recognize the employment of people with disabilities as an Administration priority, the Department of Labor is initiating the Inaugural New Freedom Initiative Award program. This award will be presented annually by the Secretary of Labor to honor individuals, corporations, and non-profit organizations which have been exemplary in furthering the employment related objectives of President George W. Bush's New Freedom Initiative.
Comments submitted in response to this comment request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
In accordance with Section 223 of the Trade Act of 1974, as amended, the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) issued during the period of May, 2002.
In order for an affirmative determination to be made and a certification of eligibility to apply for worker adjustment assistance to be issued, each of the group eligibility requirements of Section 222 of the Act must be met.
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, have become totally or partially separated,
(2) That sales or production, or both, of the firm or sub-division have decreased absolutely, and
(3) That increases of imports of articles like or directly competitive with articles produced by the firm or appropriate subdivision have contributed importantly to the separations, or threat thereof, and to the absolute decline in sales or production.
In each of the following cases the investigation revealed that criterion (3) has not been met. A survey of customers indicated that increased imports did not contribute importantly to worker separations at the firm.
In the following cases, the investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The workers firm does not produce an article as required for certification under section 222 of the Trade Act of 1974.
Increased imports did not contribute importantly to worker separations at the firm.
The investigation revealed that criteria (2) has not been met. Sales or production did not decline during the relevant period as required for certification.
The following certifications have been issued; the date following the company name and location of each determination references the impact date for all workers of such determination.
Also, pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance hereinafter called (NAFTA-TAA) and in accordance with Section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act as amended, the Department of Labor presents summaries of determinations regarding eligibility to apply for NAFTA-TAA issued during the month of May, 2002.
In order for an affirmative determination to be made and a certification of eligibility to apply for NAFTA-TAA the following group eligibility requirements of Section 250 of the Trade Act must be met:
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, (including workers in any agricultural firm or appropriate subdivision thereof) have become totally or partially separated from employment and either—
(2) That sales or production, or both, of such firm or subdivision have decreased absolutely.
(3) That imports from Mexico or Canada of articles like or directly competitive with articles produced by such firm or subdivision have increased, and that the increases im ports contributed importantly to such workers' separations or threat of separation and to the decline in sales or production of such firm or subdivision; or
(4) That there has been a shift in production by such workers' firm or
In each of the following cases the investigation revealed that criteria (3) and (4) were not met. Imports from Canada or Mexico did not contribute importantly to workers' separations. There was no shift in production from the subject firm to Canada or Mexico during the relevant period.
The investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The investigation revealed that workers of the subject firm did not produce an article within the meaning of Section 250(a) of the Trade Act, as amended.
I hereby certify that the aforementioned determinations were issued during the month of May, 2002. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, D.C. 20210 during normal business hours or will be mailed to persons who write to the above address.
In accordance with section 223 of the Trade Act of 1974, as amended, the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) issued during the period of April and May, 2002.
In order for an affirmative determination to be made and a certification of eligibility to apply for worker adjustment assistance to be issued, each of the group eligibility requirements of section 222 of the Act must be met.
(1) That a significant number of proportion of the workers in the workers' firm, or an appropriate subdivision thereof, have become totally or partially separated,
(2) That sales or production, or both, of the firm or subdivision have decreased absolutely, and
(3) that increases of imports of articles like or directly competitive with articles
In each of the following cases the investigation revealed that criterion (3) has not been met. A survey of customers indicated that increased imports did not contribute importantly to worker separations at the firm.
In the following cases, the investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The workers firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
Increased imports did not contribute importantly to worker separations at the firm.
The investigation revealed that criteria (1) has not been met. A significant number or proportion of the workers did not become totally or partially separated from employment as required for certification.
The following certifications have been issued; the date following the company name and location of each determination references the impact date for all workers of such determination.
Also, pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance hereinafter called (NAFTA-TAA) and in accordance with section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act as amended, the Department of Labor presents summaries of determinations regarding eligibility to apply for NAFTA-TAA issued during the month of March and April, 2001.
In order for an affirmative determination to be made and a certification of eligibility to apply for NAFTA-TAA the following group eligibility requirements of section 250 of the Trade Act must be met:
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, (including workers in any agricultural firm or appropriate subdivision thereof) have become totally or partially separated from employment and either—
(2) That sales or production, or both, of such firm or subdivision have decreased absolutely,
(3) That imports from Mexico or Canada of articles like or directly competitive with articles produced by such firm or subdivision have increased, and that the increases in imports contributed importantly to such workers' separations or threat of separation and to the decline in sales or production of such firm or subdivision; or
(4) That there has been a shift in production by such workers' firm or subdivision to Mexico or Canada of articles like or directly competitive with articles which are produced by the firm or subdivision.
In each of the following cases the investigation revealed that criteria (3) and (4) were not met. Imports from Canada or Mexico did not contribute importantly to workers' separations. There was no shift in production from the subject firm to Canada or Mexico during the relevant period.
The investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The investigation revealed that workers of the subject firm did not produce an article within the meaning of section 250(a) of the Trade Act, as amended.
I hereby certify that the aforementioned determinations were issued during the month of April and May, 2001. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on April 1, 2002 in response to a worker petition which was filed on behalf of workers at 3M Corporation, Bedford Park, Argo, Illinois.
An active certification covering the petitioning group of workers remains in effect (TA-W-40,874). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on April 8, 2002, in response to a petition filed on behalf of all workers at American Component, Inc., Dandridge, Tennessee.
The workers' petition regarding the investigation is invalid. Two of the three petitioners neglected to sign the petition. Consequently, further investigation in this cannot progress, and the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on February 25, 2002 in response to a petition filed by a company official on behalf of workers at ASARCO, Inc., Amarillo Copper Refinery, Amarillo, Texas. Workers at the subject plant produce refined copper and other metals.
An active certification covering the petitioning group of workers remains in effect (TA-W-40,104B). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on December 21, 2001, in response to a worker petition that was filed by United Steelworkers of America, Local 884 on behalf of workers at Bridgestone/Firestone, located in Russellville, Arkansas.
The investigation revealed that this petition is a copy of the petition filed for the Bridgestone/Firestone workers in Russellville, Arkansas, TA-W-40,309. The petition investigation for TA-W-40,309, resulted in a negative determination that was issued on April 18, 2002. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on April 8, 2002, in response to a worker petition filed on behalf of workers at Eagle-Picher Industries, Seneca, Missouri.
The petitioning group of workers is subject to an ongoing investigation for which a determination has not yet been issued (TA-W-41,211). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on January 22, 2002, in response to a petition filed by the company on behalf of workers at Erie Concrete & Steel Supply Co., Erie, Pennsylvania.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a voluntary remand for further investigation in
The Department's initial denial of Trade Adjustment Assistance (TAA) for the workers producing wooden furniture components at Key Manufacturing Company, Inc., was based on the finding that criterion (3) of the group eligibility requirements of Section 222 of the Trade Act of 1974, as amended, was not met. The decision was signed on September 30, 1999, and published in the
The petitioners request for reconsideration of the Department's negative determination for TA-W-36,804, resulted in a Dismissal on Application for Reconsideration, since the application contained no new information which would bear importantly of the Department's determination. The dismissal was issued on January 5, 2000 and published in the
On remand, the Department contacted the customer(s) of Key Manufacturing Company, Inc., Jasper, Alabama identified by the petitioner to be importing turned furniture parts. The petitioner claims that the customers increased their imports of turned furniture parts.
On remand, the survey indicated that none of the respondents increased their imports of turned furniture parts during the relevant period.
Two of the survey respondents reported that they purchased turned furniture parts from other domestic vendors immediately after the closure of the subject plant during late April 1999. They also reported that they began to import during the January/February 2000 period, well beyond the relevant period.
The third customer, based on data supplied by the petitioner, did not import turnings. The customer purchased all their turnings from the subject firm, changed their product line, which eliminated the need for turnings. That customer attributed their declines in purchases from the subject firm to increased imports of furniture. The import of furniture is not relevant to the products “like or directly competitive” with turned furniture parts produced by the subject firm.
After reconsideration on remand, I affirm the original notice of negative determination of eligibility to apply for adjustment assistance for workers and former workers of Key Manufacturing Co. Inc., Jasper, Alabama.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on March 11, 2002, in response to a worker petition that was filed on behalf of workers at Kurwood, Inc., Los Angeles, California.
The petition lacks the requisite worker signatures. The worker who filed the petition is neither a company official nor a union representative. Furthermore, the worker does not recall filing the petition and does not desire that the investigation move forward.
Consequently further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on February 19, 2002 in response to a worker petition which was filed on behalf of workers at Leybold Vacuum USA, Inc., Export, Pennsylvania.
An active investigation covering the petitioning group of workers is already in effect (TA-W-40,609). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on April 29, 2002, in response to a petition filed by a company official on behalf of workers at Liberty Manufacturing, Liberty, South Carolina.
An active certification covering the petitioning worker group of workers remains in effect (TA-W-40,663). Consequently, further investigation in this case would serve no purpose and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on January 14, 2002 in response to a worker petition which was filed by a company official on behalf of workers at Phoenix Finishing Corporation, a Division of NRB Industries, Inc, Gaffney, South Carolina.
An active investigation covering the petitioning group of workers is already in effect (TA-W-40,432). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Petitions have been filed with the Secretary of Labor under section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than May 28, 2002.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than May 28, 2002.
The petitions filed in this case are available for inspection at the office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Petitions have been filed with the Secretary of Labor under section 221 (a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221 (a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than May 28, 2002.
Interested person are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than May 28, 2002.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Employment and Training Administration, Labor.
Notice of adverse effect wage rates (AEWRs), allowable charges for meals, and maximum travel subsistence reimbursement for 2002.
The Employment and Training Administration (ETA), announces 2002 adverse effect wage rates (AEWRs) for employers seeking nonimmigrant alien (H-2A) workers for temporary or seasonal agricultural labor or services, the allowable charges employers seeking nonimmigrant alien workers for temporary or seasonal agricultural labor or services or logging work may levy upon their workers when they provide three meals per day, and the maximum travel subsistence reimbursement which a worker with receipts may claim in 2002.
AEWRs are the minimum wage rates which the Department of Labor has determined must be offered and paid to U.S. and alien workers by employers of nonimmigrant alien agricultural workers (H-2A visaholders). AEWRs are established to prevent the employment of these aliens from adversely affecting wages of similarly employed U.S. workers.
The Administrator also announces the new rates which covered agricultural and logging employers may charge their workers for three daily meals.
Under specified conditions, workers are entitled to reimbursement for travel subsistence expense. The minimum reimbursement is the charge for three daily meals as discussed above. The Administrator here announces the current maximum reimbursement for workers with receipts.
May 17, 2002.
Mrs. Grace A. Kilbane, Administrator, Office of Workforce Security, U.S. Department of Labor, Room S-4231, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-3200 (this is not a toll-free number).
The Attorney General may not approve an employer's petition for admission of temporary alien agricultural (H-2A) workers to perform agricultural labor or services of a temporary or seasonal nature in the United States unless the petitioner has applied to the Department of Labor (DOL) for an H-2A labor certification. The labor certification must show that: (1) There are not sufficient U.S. workers who are able, willing, and qualified and who will be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
DOL's regulations for the H-2A program require that covered employers offer and pay their U.S. and H-2A workers no less than the applicable hourly adverse effect wage rate (AEWR). 20 CFR 655.102(b)(9); see also 20 CFR 655.107. Reference should be made to the preamble to the July 5, 1989, final rule (54 FR 28037), which explains in great depth the purpose and history of AEWRs, DOL's discretion in setting AEWRs, and the AEWR computation methodology at 20 CFR 655.107(a). See also 52 FR 20496, 20502-20505 (June 1, 1987).
Adverse effect wage rates (AEWRs) are the minimum wage rates which DOL has determined must be offered and paid to U.S. and alien workers by employers of nonimmigrant (H-2A) agricultural workers. DOL emphasizes, however, that such employers must pay the highest of the AEWR, the applicable prevailing wage or the statutory minimum wage, as specified in the regulations. 20 CFR 655.102(b)(9). Except as otherwise provided in 20 CFR part 655, subpart B, the regionwide AEWR for all agricultural employment (except those occupations deemed inappropriate under the special circumstances provisions of 20 CFR 655.93) for which temporary alien agricultural labor (H-2A) certification is being sought, is equal to the annual weighted average hourly wage rate for field and livestock workers (combined) for the region as published annually by the U.S. Department of Agriculture (USDA does not provide data on Alaska). 20 CFR 655.107(a).
The regulation at 20 CFR 655.107(a) requires the Administrator, Office of Workforce Security, to publish USDA field and livestock worker (combined) wage data as AEWRs in a
Among the minimum benefits and working conditions which DOL requires employers to offer their alien and U.S. workers in their applications for temporary logging and H-2A agricultural labor certification is the provision of three meals per day or free and convenient cooking and kitchen facilities. 20 CFR 655.102(b)(4) and 655.202(b)(4). Where the employer provides meals, the job offer must state the charge, if any, to the worker for meals.
DOL has published at 20 CFR 655.102(b)(4) and 655.111(a) the methodology for determining the maximum amounts covered H-2A agricultural employers may charge their U.S. and foreign workers for meals. The same methodology is applied at 20 CFR 655.202(b)(4) and 655.211(a) to covered H-2 logging employers. These rules provide for annual adjustments of the previous year's allowable charges based upon Consumer Price Index (CPI) data.
Each year the maximum charges allowed by 20 CFR 655.102(b)(4) and 655.202(b)(4) are changed by the same percentage as the twelve-month percent change in the CPI for all Urban Consumers for Food (CPI-U for Food) between December of the year just past and December of the year prior to that. Those regulations and 20 CFR 655.111(a) and 655.211(a) provide that the appropriate Regional Administrator (RA), Employment and Training Administration, may permit an employer to charge workers no more than a higher maximum amount for providing them with three meals a day, if justified and sufficiently documented. Each year, the higher maximum amounts permitted by 20 CFR 655.111(a) and 655.211(a) are changed by the same percentage as the twelve-month percent change in the CPI-U for Food between December of the year just past and December of the year prior to that. The regulations require the Administrator, Office of Workforce Security, to make the annual adjustments and to cause a notice to be published in the
DOL has determined the percentage change between December of 2000 and December of 2001 for the CPI-U for Food was 3.2 percent.
Accordingly, the maximum allowable charges under 20 CFR 655.102(b)(4), 655.202(b)(4), 655.111, and 655.211 were adjusted using this percentage change, and the new permissible charges for 2002 are as follows: (1) For 20 CFR 655.102(b)(4) and 655.202(b)(4), the charge, if any, shall be no more than $8.44 per day, unless the RA has approved a higher charge pursuant to 20 CFR 655.111 or 655.211(b); for 20 CFR 655.111 and 655.211, the RA may permit an employer to charge workers up to $10.45 per day for providing them with three meals per day, if the employer justifies the charge and submits to the RA the documentation required to support the higher charge.
The regulations at 20 CFR 655.102(b)(5) establish that the minimum daily subsistence expense related to travel expenses, for which a worker is entitled to reimbursement, is the employer's daily charge for three meals or, if the employer makes no charge, the amount permitted under 20 CFR 655.104(b)(4). The regulation is silent about the maximum amount to which a qualifying worker is entitled.
The Department, in Field Memorandum 42-94, established that the maximum is the meals component of the standard CONUS (continental United States) per diem rate established by the General Services Administration (GSA) and published at 41 CFR Ch. 301. The CONUS meal component is now $30.00 per day.
Workers who qualify for travel reimbursement are entitled to reimbursement up to the CONUS meal rate for related subsistence when they provide receipts. In determining the appropriate amount of subsistence reimbursement, the employer may use the GSA system under which a traveler qualifies for meal expense reimbursement per quarter of a day. Thus, a worker whose travel occurred during two quarters of a day is entitled, with receipts, to a maximum reimbursement of $15.00.
If a worker has no receipts, the employer is not obligated to reimburse above the minimum stated at 20 CFR 655.102(b)(4) as specified above.
Employment and Training Administration, Labor.
Notice.
This notice announces the final planning allotments for Program Year (PY) 2002 (July 1, 2002 through June 30, 2003) for basic labor exchange activities provided under the Wagner-Peyser Act.
Timothy S. Felegie, Office of Workforce Security, 200 Constitution Avenue NW., Room S-4231, Washington, DC 20210. Telephone: (202) 693-2934 (this is not a toll-free number).
In accordance with section 6(b)(5) of the Wagner-Peyser Act, 29 U.S.C. 49e(b)(5), the Employment and Training Administration is publishing final planning allotments for each State for Program Year (PY) 2002 (July 1, 2002, through June 30, 2003). Preliminary planning estimates were provided to each State on March 8, 2002. The Secretary of Labor distributes funds in accordance with formula criteria established in section 6(a) and (b) of the Wagner-Peyser Act. The Secretary uses Civilian labor force (CLF) and unemployment data for Calendar Year 2001 to make the formula calculations.
The total amount of funds currently available for distribution is $761,735,000. The Secretary may set aside up to three percent (3%) of the total available funds to assure that each State will have sufficient resources to maintain statewide employment services, as required by section 6(b)(4) of the Act, 29 U.S.C. 49e(b)(4). In accordance with this provision, the Secretary has set aside $22,372,050 for administrative formula allocation. These funds are included in the total planning allotment. The Secretary distributes the funds that are set aside in two steps to States that have lost in relative share of resources from the prior year. In Step One, States that have a CLF below one million and are below the median CLF density are maintained at 100 percent of their relative share of prior year resources.
The Secretary distributes the remainder in Step Two to all other States losing their relative share from the prior year, but which do not meet the size and density criteria for Step One. Postage costs incurred by States during the conduct of employment service (ES) activities are billed directly to the Department of Labor by the U.S. Postal Service. The total final planning allotment reflects $16,000,000, or 2.1 percent of the total amount available, withheld from distribution to finance postage costs associated with the conduct of ES business. Under section 7(b) of the Act, 29 U.S.C 49f(b), ten percent of the total sums allotted to each State shall be reserved for use by the Governor to provide performance incentives for public ES offices and programs; services for groups with special needs; and for the extra costs of exemplary models for delivering job services.
Differences between preliminary planning estimates and final planning allotments are caused by the use of Calendar Year 2001 data as opposed to the earlier data (12 months ending September 2001) used for preliminary planning estimates.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with section 250(a), subchapter D, chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on February 13, 2002, in response to a petition filed by the United Steelworkers of America (Local 1305), on behalf of workers at Alcoa Wheel Products, Alcoa Wheel and Forged Products, Lebanon, Virginia.
The petitioners requested that the petition for NAFTA-TAA be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Petitions for transitional adjustment assistance under the North American Free Trade Agreement-Transitional Adjustment Assistance Implementation Act (Pub. L. 103-182), hereinafter called (NAFTA-TAA), have been filed with State Governors under Section 250(b)(1) of Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended, are identified in the Appendix to this Notice. Upon notice from a Governor that a NAFTA-TAA petition has been received, the Director of the Division of Trade Adjustment Assistance (DTAA), Employment and Training Administration (ETA), Department of Labor (DOL), announces the filing of the petition and takes action pursuant to paragraphs (c) and (e) of Section 250 of the Trade Act.
The purpose of the Governor's actions and the Labor Department's investigations are to determine whether the workers separated from employment on or after December 8, 1993 (date of enactment of Pub. L. 103-182) are eligible to apply for NAFTA-TAA under Subchapter D of the Trade Act because of increased imports from or the shift in production to Mexico or Canada.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing with the Director of DTAA at the U.S. Department of Labor (DOL) in Washington, DC provided such request if filed in writing with the Director of DTAA not later than May 28, 2002.
Also, interested persons are invited to submit written comments regarding the subject matter of the petitions to the Director of DTAA at the address shown below not later than May 28, 2002.
Petitions filed with the Governors are available for inspection at the Office of the Director, DTAA, ETA, DOL, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on January 30, 2002 in response to a worker petition, which was filed by the company on behalf of workers at Biltwell Clothing Co., Farmington, Missouri.
An active certification covering the petitioning group of workers remains in effect (NAFTA-4873). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with section 250(a), subchapter D, chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on August 20, 2001, in response to a petition filed on behalf of workers at Cleveland Caroknit, Spartan International, Lawndale, North Carolina.
An active certification covering the petitioning group of workers remains in effect (NAFTA-5081E). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
By application received on February 11, 2002, the workers requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for North American Free Trade Agreement-Transitional Adjustment Assistance (NAFTA-TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on November 16, 2001, and was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If its appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The NAFTA-TAA petition, filed on behalf of workers at Cognis Corporation, Lock Haven, Pennsylvania engaged in activities related to the production of photomers was denied because criteria (3) and (4) were not met. Imports from Canada or Mexico did not contribute importantly to workers' separations. There was no shift in production from
The petitioner alleges that the company not only produced photomers as the decision indicated, but also produced dye intermediates.
Based on the information provided by the petitioner and the company it is evident that the dye intermediates were produced and discontinued prior to the relevant period. The investigation concentrated on the product (photomers) produced at the subject firm during the relevant period.
Although not noted in the denial notice, the Department surveyed the customers of the subject firm regarding their purchases of photomers during the relevant period. The survey revealed that none of the respondents increased their purchases of imported photomers, while decreasing their purchases from the subject firm during the relevant period.
After review of the application for reconsideration and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decisions. Accordingly, the application is denied.
By application dated December 4, 2001, petitioners requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for North American Free Trade Agreement-Transitional Adjustment Assistance (NAFTA-TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on November 15, 2001, and was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The denial of NAFTA-TAA for workers engaged in activities related to the production of leather and leather products (used by the automotive industry, i.e., seating components) at Connolly North America, El Paso, Texas, was based on the finding that criteria (3) and (4) of the group eligibility requirements of paragraph (a)(1) of section 250 of the Trade Act, as amended, were not met. There were no company imports of leather or leather products from Mexico or Canada, nor did the subjects firm shift production from El Paso, Texas to Mexico or Canada.
The petitioner requested administrative reconsideration based on a major customer switching their purchases of leather and leather products from the subject firm in favor of producing the products at the customer's affiliated location in Mexico.
Based on data supplied during the initial investigation, the allegation by the petitioner is consistent with what the subject firm provided. The loss of a customer and the decision by the customer to produce the leather and leather products in Mexico and the further processing of these products into car seat components in Mexico does not meet the eligibility requirements of the group eligibility requirements of paragraph (a)(1) of section 250 of the Trade Act, as amended.
However, based on the data supplied, the Department will evaluate if the firm is secondarily impacted under the North American Free Trade Agreement (NAFTA) Implementation Act.
After review of the application and investigation findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
The Department of labor hererin presents the results of an investigation regarding qualification as a secondarily impacted firm, pursuant to the Statement of Administrative Action accompanying the North American Free Trade Agreement (NAFTA) Implementation Act.
The workers of Connolly North America, El Paso, Texas were denied eligibility to apply for NAFTA-TAA (NAFTA-5397). Pursuant to that determination, an investigation was conducted in order to determine whether the workers qualify as secondarily impacted as suppliers to or finishers or processors for a firm primarily affected by increased imports from or a shift in production to Mexico or Canada.
In order for an affirmative finding to be made, the following requirements must be met:
(1) The subject firm must be a supplier of a firm that is directly affected by imports from Mexico or Canada or shifts in production to those countries; or
(2) The subject firm must assemble or finish products made by a directly-impacted firm; and
(3) The loss of business with the directly-affected firm must have contributed importantly to worker separations at the subject firm.
The investigation revealed that criteria (1) and (2) have not been met.
The petitioners assert that a major customer switched their purchases of leather and leather products from the subject firm in favor of producing the leather and leather products at the customer's affiliated location in Mexico.
The subject firm workers were engaged in activities related to
Based on this evidence, I determine that with respect to workers of Connolly North America, El Paso, Texas, such workers do not qualify as secondarily affected pursuant to the Statement of Administrative Action accompanying the North American Free Trade Agreement Implementation Act.
For further information on assistance under Title I of the Workforce Investment Act which may be available to workers included under this determination, contact: Ms. Barbara Cigainero, Director, Workforce Development, Texas Workforce Commission, 101 E. 15th Street, Austin, Texas 78778-001, Phone: (512) 463-7747, FAX: (512) 463-2799, E-Mail:
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called NAFTA-TAA and in accordance with section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2331), an investigation was initiated on July 30, 1998, in response to a petition filed on behalf of workers at General Electric Transportation System (GETS) Global Signaling, Grain Valley, Missouri.
None of the three workers that filed the petition are employees of GETS, Global Signaling's Grain Valley facility. The petition is therefore deemed invalid. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called NAFTA-TAA and in accordance with section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2331), the Department of Labor herein presents the results of an investigation regarding certification of eligibility to apply for NAFTA-TAA.
Petition NAFTA-6044 is a duplicate of a previous petition (NAFTA-5171), which was certified on August 29, 2001. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to 29 CFR 90.18(C) an application for administrative reconsideration was filed with the Director of the Division of Trade Adjustment Assistance for workers at Kraft Foods North America, Inc., Lehigh Valley, Pennsylvania. The application contained no new substantial information which would bear importantly on the Department's determination. Therefore, dismissal of the application was issued.
In accordance with Section 250(A), Subchapter D, Chapter 2, Title II of the Trade Act of 1974 (19 U.S.C. 2273), the Department of Labor issued a Certification Regarding Eligibility to Apply for NAFTA Transitional Adjustment Assistance on September 24, 2001, applicable to workers of PlasticSource, Inc., including workers of Kelly Staff Leasing, El Paso, Texas. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. Information provided by the State shows that leased employees of Kelly Services, Inc. were also employed at PlasticSource, Inc. to produce headlamp parts and vacuum cleaner parts at the El Paso, Texas location of the subject firm.
Worker separations occurred at Kelly Services, Inc. as a result of worker separations at PlasticSource, Inc. El Paso, Texas.
Based on these findings, the Department is amending the certification to include workers of Kelly Service, Inc. employed at PlasticSource, Inc., El Paso, Texas.
The intent of the Department's certification is to include all workers of PlasticSource, Inc., El Paso, Texas adversely affected by declines in sales, production and employment and increased customer imports of headlamp parts and vacuum cleaner parts from Mexico.
The amended notice applicable to NAFTA—5148 is hereby issued as follows:
All workers of PlasticSource, Inc., El Paso, Texas, including workers of Kelly Staff
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with Section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on October 26, 2001 in response to a worker petition that was filed on behalf of workers at Vison Tool & Manufacturing, Inc., Meadville, Pennsylvania.
The petitioning group of workers has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
General wage determination decisions of the Secretary of Labor are issued in accordance with applicable law and are based on the information obtained by the Department of Labor from its study of local wage conditions and data made available from other sources. They specify the basic hourly wage rates and fringe benefits which are determined to be prevailing for the described classes of laborers and mechanics employed on construction projects of a similar character and in the localities specified therein.
The determinations in these decisions of prevailing rates and fringe benefits have been made in accordance with 29 CFR part 1, by authority of the Secretary of Labor pursuant to the provisions of the Davis-Bacon Act of March 3, 1931, as amended (46 Stat. 1494, as amended, 40 U.S.C. 276a) and of other Federal statutes referred to in 29 CFR part 1, Appendix, as well as such additional statutes as may from time to time be enacted containing provisions for the payment of wages determined to be prevailing by the Secretary of Labor in accordance with the Davis-Bacon Act. The Prevailing rates and fringe benefits determined in these decisions shall, in accordance with the provisions of the foregoing statutes, constitute the minimum wages payable on Federal and federally assisted construction projects to laborers and mechanics of the specified classes engaged on contract work of the character and in the localities described therein.
Good cause is hereby found for not utilizing notice and public comment procedure thereon prior to the issuance of these determinations as prescribed in 5 U.S.C. 553 and not providing for delay in the effective date as prescribed in that section, because the necessity to issue current construction industry wage determinations frequently and in large volume causes procedures to be impractical and contrary to the public interest.
General wage determination decisions, and modifications and supersedes decisions thereto, contain no expiration dates and are effective from their date of notice in the
Any person, organization, or governmental agency having an interest in the rates determined as prevailing is encouraged to submit wage rate and fringe benefit information for consideration by the Department.
Further information and self-explanatory forms for the purpose of submitting this data may be obtained by writing to the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Division of Wage Determinations, 200 Constitution Avenue, NW., Room S-3014, Washington, DC 20210.
The number of the decisions listed to the Government Printing Office document entitled “General Wage Determinations Issued Under the Davis-Bacon and related Acts” being modified are listed by Volume and State. Dates of publication in the
General wage determinations issued under the Davis-Bacon and related Acts, including those noted above, may be found in the Government Printing Office (GPO) document entitled “General Wage Determinations Issued Under the Davis-Bacon And Related Acts”. This publication is available at each of the 50 Regional Government Depository Libraries and many of the 1,400 Government Depository Libraries across the country.
General wage determinations issued under the Davis-Bacon and related Acts are available electronically at no cost on the Government Printing Office site at
Hard-copy subscriptions may be purchased from: Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, (202) 512-1800
When ordering hard-copy subscription(s), be sure to specify the State(s) of interest, since subscriptions may be ordered for any or all of the six separate Volumes, arranged by State. Subscriptions include an annual edition (issued in January or February) which includes all current general wage determinations for the States covered by each volume. Throughout the remainder of the year, regular weekly updates will be distributed to subscribers.
The FirstEnergy Nuclear Operating Company (FENOC/the licensee) is the holder of Facility Operating License No. NPF-73, which authorizes operation of Beaver Valley Power Station, Unit No. 2 (BVPS-2). The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC, the Commission) now or hereafter in effect.
The facility consists of a pressurized-water reactor (PWR) located in Beaver County, Pennsylvania.
Title 10 of the Code of Federal Regulations (10 CFR), part 54 addresses the various requirements for renewal of operating licenses for nuclear power plants. Section 54.17(c) of part 54 specifies:
An application for a renewed license may not be submitted to the Commission earlier than 20 years before the expiration of the operating license currently in effect.
By letter dated December 17, 2001, the licensee requested an exemption from 10 CFR 54.17(c) for BVPS-2. At the time of the request, there were more than 25 years remaining until the expiration of the current operating license for BVPS-2. The exemption would allow FENOC to process and submit the BVPS-2 license renewal application concurrent with the Beaver Valley Power Station, Unit No. 1 (BVPS-1) license renewal application. Because of the similarities in design, operation, maintenance, operating experience and environments of the two Beaver Valley units, many of the analyses to be performed for Unit 1 would be directly applicable to Unit 2.
This exemption is required in order to allow an application for renewal of the BVPS-2 license to be prepared and submitted concurrently with the license renewal application for BVPS-1. Based on an anticipated submittal of a renewal application in September 2004, such a license renewal request for BVPS-2 would occur approximately 3 years earlier than the earliest date allowed by 10 CFR 54.17(c).
Pursuant to 10 CFR 54.15, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 54, in accordance with the provisions of 10 CFR 50.12, when (1) the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present.
The requirements for exemption are discussed below:
The Commission's basis for establishing the 20-year limit contained in § 54.17(c) is discussed in the 1991 Statements of Consideration for part 54 (56 FR 64963). The limit was established to ensure that substantial operating experience was accumulated by a licensee before a renewal application is submitted such that any plant-specific concerns regarding aging would be disclosed. In amending the rule in 1995, the Commission indicated that it was willing to consider plant-specific exemption requests by applicants who believe that sufficient information is available to justify applying for license renewal earlier than 20 years from expiration of the current license. FENOC's exemption request is consistent with the Commission's intent to consider plant-specific requests and
The current operating license for BVPS-2, was issued in accordance with the Atomic Energy Act, as amended (AEA), and 10 CFR 50.51 which limit the duration of an operating license to a maximum of 40 years. In accordance with § 54.31, a renewed license will be of the same class as the operating license currently in effect and cannot exceed a term of 40 years. Therefore, the term of a renewed license for BVPS-2 would be limited both by law and the Commission's regulations to 40 years. Additionally, Section 54.31 (b) states that:
A renewed license will be issued for a fixed period of time, which is the sum of the additional amount of time beyond the expiration of the operating license (not to exceed 20 years) that is requested in a renewal application plus the remaining number of years on the operating license currently in effect. The term of any renewed license may not exceed 40 years.
The potential exists that, because of FENOC's decision to apply early for license renewal for BVPS-2, FENOC might not obtain the maximum 20-year period of extended operation permitted by § 54.31(b). Any actual reduction will depend on the date that a renewed license is issued. If a reduction in 20-year extension is required and FENOC desires further extension of the BVPS-2 operating license in the future, an additional renewal application can be submitted in accordance with part 54.
Therefore, should the Commission determine to renew the BVPS-2 operating license, the term of the license will not exceed 40 years, and granting of FENOC's exemption request will not result in violation of the AEA or the Commission's regulations.
FENOC's exemption request seeks only schedular relief regarding the date of submittal, and not substantive relief from the requirements of parts 51 or 54. FENOC must still conduct all environmental reviews required by part 51 and all safety reviews and evaluations required by part 54 when preparing a license renewal application for BVPS-2. Following submittal, the staff's review will verify that all applicable Commission regulations are met before issuing a renewed license. Therefore, the staff finds that granting this schedular exemption will not represent an undue risk to public health and safety.
As discussed previously, the exemption requested is only a schedular exemption. The NRC staff will review any renewal application for BVPS-2 submitted by FENOC, pursuant to the requested exemption, to determine whether all applicable requirements are fully met. Accordingly, granting the requested exemption is consistent with the common defense and security.
An exemption will not be granted unless special circumstances are present as defined in 10 CFR 50.12(a)(2). Specifically, § 50.12(a)(2)(ii) states that a special circumstance exists when “application of the regulation in the particular circumstances * * * is not necessary to achieve the underlying purpose of the rule.” In initially promulgating § 54.17(c) in 1991, the Commission stated that the purpose of the time limit was “to ensure that substantial operating experience is accumulated by a licensee before it submits a renewal application” (56 FR 64963). At that time, the Commission found that 20 years of operating experience provided a sufficient basis for renewal applications. However, in issuing the amended Part 54 in 1995, the Commission indicated it would consider an exemption to this requirement if sufficient information was available on a plant-specific basis to justify submission of an application to renew a license before completion of 20 years of operation (60 FR 22488). The 20-year limit was imposed by the Commission to ensure that sufficient operating experience was accumulated to identify any plant-specific aging concerns. As set forth below, BVPS-1 and 2 are sufficiently similar, such that the operating experience for BVPS-1 is applicable to BVPS-2. In addition, BVPS-2 has accumulated significant operating experience. Accordingly, under the requested exemption, sufficient operating experience will have been accumulated to identify any plant-specific aging concerns for both units.
The licensee states that BVPS-1 and 2 are similar in design, operation, maintenance, use of operating experience, and environments, and, as such, BVPS-1 operating experience is directly applicable to BVPS-2. Both Beaver Valley units are 2689 megawatt (thermal) PWRs designed by the Westinghouse Electric Corporation, and the same architect/engineer designed and built the entire site. The licensee states that the materials of construction for systems, structures, and components on both units are similar. These statements are supported by a review of the BVPS-2 Updated Final Safety Analysis Report (UFSAR). In particular, Section 1.3 of the UFSAR describes the similarities in design between the units. Table 1.3-1 of the UFSAR lists significant similarities between systems, structures, and components installed at both BVPS-1 and 2, including elements of the engineered safety features, containment concepts, instrumentation systems, electrical systems, and waste management system.
BVPS-2 is physically located adjacent to BVPS-1. As such, the external environments would be similar for both units. Internal environments for both units are also similar due to the similarity in plant design and operation.
FENOC also stated that many of the procedures that govern site activities are not unit specific. The Beaver Valley Plant Condition Report procedure governs the documentation, analysis, and corrective action associated with plant non-conformances and other conditions of concern. Non-conformance or degraded equipment on one unit is cause to investigate the possibility of the same condition on the other unit.
Because of the similarities between BVPS-1 and 2, FENOC does not divide the plant organizations by unit with the exception of the operations area, which is a unit-specific organization. The Superintendent for BVPS-1 Operations and the Superintendent for BVPS-2 Operations both report to the Plant General Manager, who reports to the Beaver Valley Senior Vice President. Additionally, various plant organizations such as Maintenance and Engineering are not divided into separate Unit 1 and Unit 2 groups, and personnel from these organizations may be assigned work activities on both units.
Given the similarities between units, the operating experience at BVPS-1 is applicable to that of BVPS-2 for purposes of the license renewal review. At the time of the exemption request, BVPS-1 had achieved over 25 years of operating experience, which are applicable to BVPS-2. Unit 2 has operated for over 14 years, which provides a substantial period of additional plant-specific operating experience to supplement the BVPS-1 operating experience. The combined years of operating experience of BVPS-1 and 2 should be sufficient to identify any aging concerns applicable to the two units.
Therefore, sufficient combined operating experience exists to satisfy the intent of § 54.17(c), and the application of the regulation in this case is not necessary to achieve the underlying purpose of the rule. The staff finds that FENOC's request meets the requirement in § 50.12(a)(2)(ii) that special circumstances exist to grant the exemption.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Additionally, special circumstances are present. Therefore, the Commission hereby grants FENOC the exemption sought from the requirements of 10 CFR 54.17(c) for BVPS-2 based on the circumstances described herein.
Pursuant to 10 CFR 51.32, the Commission has determined that the granting of this exemption will not have a significant effect on the quality of the human environment (67 FR 31384).
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Announcements of public workshop.
The Nuclear Regulatory Commission (NRC) is conducting a public meeting on June 6, 2002, to obtain stakeholder comments on draft guidance for inspections of Medical Use licensees. This guidance is being revised in order to facilitate inspections under a recently published, major revision to the regulations governing the medical use of byproduct material (67 FR 20249; April 24, 2002). The final rule becomes effective on October 24, 2002, six months from the date of publication. The meeting on inspection guidance is one of three workshops being conducted on guidance related to the revised rule. The other workshops, related to draft NUREG-1556, Volume 9, “Consolidated Guidance About Materials Licenses; Program-Specific Guidance About Medical Use Licenses,” were held at NRC headquarters in Rockville MD on April 25 and 30, 2002. The NRC is especially interested in stakeholder comments that will improve guidance to make it more risk-informed and performance-based.
Commenters should submit comments on the draft inspection procedures by June 21, 2002. The draft inspection procedures will be made publically available in mid-May, 2002. Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date. A one day public workshop will be held on Thursday, June 6, 2002, from 9 a.m. to 5 p.m. at NRC's headquarters; the workshop will be preceded by an open house from 8 a.m. to 9 a.m. The intent of the open house is to present the opportunity for informal interactions between attendees, both NRC staff and members of the public. To ensure that adequate copies of handouts are available, persons planning to attend the workshop should contact the person designated below by June 4, 2002.
Written comments on the draft inspection guidance may be submitted to the Chief, Rules and Directives Branch, Office of Administration, U.S. Nuclear Regulatory Commission, Mail Stop T6-D59, Washington, DC 20555. The draft inspection guidance will be available for review and comment on the Internet at the NRC's Rulemaking Forum at
The public workshop will be held at the NRC Auditorium, Two White Flint North, 11545 Rockville Pike, Rockville, Maryland. Information about the workshops will also be posted at NRC's Web site at
Wade T. Loo, Office of Nuclear Materials Safety and Safeguards, Division of Industrial and Medical Nuclear Safety, Rulemaking and Guidance Branch, Mail Stop T9-C24, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: (404) 562-4727; e-mail:
The NRC is posting draft inspection guidance for public comment on the NRC's Rulemaking Forum web site. In addition to obtaining written comments, the NRC staff will be conducting a public workshop on June 6, 2002, to obtain stakeholder comments on the draft guidance. The workshop will be held in the Auditorium at NRC Headquarters in Rockville, MD.
The NRC staff is seeking input on the draft guidance in order to make it useful for the conduct of inspections for compliance with the revised 10 CFR part 35, “Medical Use of Byproduct Material.” In particular, staff is especially interested in receiving comments on how to make inspection procedures both performance-based and risk-informed.
To facilitate the NRC's handling of comments, we request that commenters relate their comments to specific sections in the draft inspection guidance or in 10 CFR part 35. This will help place the comments in context and aid in understanding how they relate to the guidance.
For the Nuclear Regulatory Commission.
At its meeting on May 6, 2002, the Board of Governors of the United States Postal Service voted unanimously to add consideration of an outside audit contract to the agenda of its closed meeting.
In addition, by telephone vote on May 2, a majority of the members contacted and voting, the Board voted to close to public observation the Audit and Finance Committee meeting scheduled for May 6, to consider resolution of an audit matter.
No earlier announcement of either of the above items was possible. The General Counsel of the United States Postal Service certified that in her opinion discussion of these items could be properly closed to public observation.
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by June 4, 2002, to the Secretary, Securities and Exchange Commission, Washington, DC 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After June 4, 2002, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Dominion Resources, Inc. (“DRI”), a registered holding company; Consolidated Natural Gas Company (“CNG”), a registered holding company subsidiary of DRI, both at 120 Tredegar Street, Richmond, VA 23219, and the following subsidiaries of DRI: Dominion Energy, Inc.; Elwood Energy LLC; Dominion Reserves, Inc.; Dominion Ohio ES, Inc.; Dominion Resources Services, Inc.; Dominion Alliance Holding, Inc., all located at 120 Tredegar Street, Richmond, VA 23219; Elwood II Holdings, LLC; Elwood III Holdings, LLC, both located at 21100 Noel Road, Elwood, IL 60421; Kincaid Generation, LLC, Box 260, Kincaid, IL 62540; DT Services, Inc.; Dominion Metering Services, Inc., both at 701 East Cary Street, Richmond, VA 23219; CNG International Corporation; Dominion Greenbrier, Inc.; and Dominion Natural Gas Storage, Inc. all located at 120 Tredegar Street, Richmond, Virginia 23219; CNG Power Services Corporation; Dominion Products and Services, Inc.; Dominion Retail, Inc.; The Peoples Natural Gas Company; Dominion Tower, all located at 625 Liberty Avenue, Pittsburgh, PA 15222; Dominion Exploration & Production, Inc.; CNG Pipeline Company; CNG Main Pass Gas Gathering Corporation; CNG Oil Gathering Corporation; Dominion Oklahoma Texas Exploration & Production, Inc., all located at Four Greenspoint Plaza, 16945 Northchase Drive, Houston, TX 77060; Dominion Transmission, Inc.; Dominion Iroquois, Inc.; Dominion Field Services, Inc., all located at 445 West Main Street, Clarksburg, WV 26301; Hope Gas, Inc., 347 West Main Street, Clarksburg, WV 26301; and The East Ohio Gas Company, 1717 E. Ninth Street, Cleveland, OH 44114; (collectively “Subsidiaries”) have filed an application-declaration under sections 6(a), 7, 9, 10, 12(b), and 12(f) of the Act, and rules 43, 45, and 54 under the Act (“Application”).
DRI, CNG, and the Subsidiaries seek authority to form and operate through December 31, 2005 a DRI money pool (“DRI Money Pool”). The Subsidiaries consist of both DRI subsidiaries, which are not subsidiaries of CNG, and DRI subsidiaries that are subsidiaries of CNG that are currently participants in the CNG money pool (“CNG Money Pool”).
The purpose of the DRI Money Pool will be to provide the Subsidiaries with internal and external funds and to invest surplus funds of DRI and the Subsidiaries in short-term money market instruments. The DRI Money Pool will offer the Subsidiaries lower short-term borrowing costs due to the elimination of banking fees, a mechanism to earn a higher return on interest from surplus funds that are loaned to other Subsidiaries, and decreased reliance on external funding sources.
Participants will invest their surplus funds in the DRI Money Pool, and the Subsidiaries will borrow funds from the DRI Money Pool, provided that, (A) with respect to each of the CNG utility companies (East Ohio Gas Company, Hope Gas, Inc., and The Peoples Natural Gas Company) outstanding borrowings from the DRI Money Pool shall not exceed $750 million at any one time and (B) Exempt wholesale generators (“EWGs”), foreign utility companies (“FUCOs”), and exempt telecommunications companies (“ETCs”) are excluded as borrowers. DRI will obtain the funds to invest in the DRI Money Pool: (A) From internally generated funds; (B) through the authorizations the Commission granted by order date December 15, 1999 (HCAR No. 27112) and May 24,
The daily interest rate on loans from the DRI Money Pool and on all deposits of cash in the money pool will equal the effective weighted average rate of interest on DRI's outstanding commercial paper and/or revolving credit borrowings. If no DRI borrowings are outstanding on the date of any outstanding loan, then the interest rate will be the Federal Funds' effective rate of interest as quoted daily by the Federal Reserve Bank of New York. The rate to be used for weekends and holidays will be the rate on the prior business day.
Each participant receiving a loan through the DRI Money Pool would be required to repay the principal amount of the loan, together with all interest accrued thereon, on demand. Interest on outstanding loans would be paid to the DRI Money Pool monthly. All loans made through the DRI Money Pool can be repaid by the borrower without premium or penalty.
Funds not required by the DRI Money Pool to make loans (with the exception of funds required to satisfy the DRI Money Pool's liquidity needs) would ordinarily be invested in one or more short-term investments including: (A) Obligations issued or guaranteed by the U.S. government and/or its agencies and instrumentalities; (B) commercial paper; (C) certificates of deposits; (D) bankers' acceptances; (E) repurchase agreements; (F) tax exempt notes; and (G) other investments that are permitted by section 9(c)(3) of the Act and rule 40. The interest income and investment income earned on loans and investments of surplus funds would be allocated among the participants in the DRI Money Pool in accordance with the proportion each participant's contribution of funds bears to the total amount of funds in the DRI Money Pool.
All terms and conditions governing the operations of, and the participation by DRI, CNG and the Subsidiaries in, the DRI Money Pool will be contained in a written agreement.
C&T Enterprises, Inc. (“C&T”), 1775 Industrial Boulevard, Lewisburg, PA 17837, a Pennsylvania corporation and a public-utility holding company exempt from registration under section 3(a)(1) of the Act by order of the Commission, Claverack Rural Electric Cooperative, Inc. (“Claverack”), RR 2, Box 17, Wysox, PA 18854, a Pennsylvania rural electric cooperative and a holding company exempt from registration under section 3(a)(1) of the Act by order of the Commission, Tri-County Rural Electric Cooperative, Inc. (“Tri-County”), a Pennsylvania rural electric cooperative and a holding company exempt from registration under section 3(a)(1) of the Act by order of the Commission, and Wilderness Area Utilities, Inc. (“Wilderness”), a Pennsylvania corporation and a public-utility holding company exempt from registration under section 3(a)(1) of the Act by order of the Commission,
Tri-County and Claverack each own 50% of the issued shares of C&T. Generally, the Applicants request: (1) Authority for C&T to directly and Tri-County and Claverack to indirectly acquire all of the common stock of Valley Energy, Inc. (“Valley”), a newly formed Pennsylvania public-utility company; (2) an order granting Tri-County, Claverack, Wilderness and C&T an exemption from registration under section 3(a)(1) of the Act from all provisions of the Act, except section 9(a)(2); and (3) in the alternative to section 3(a)(1) exemptions, Tri-County and Claverack request exemptions from registration under section 3(a)(2) from all provisions of the Act except section 9(a)(2).
Tri-County is engaged in the distribution of electricity to approximately 17,000 customers throughout a 4,484 square mile service area in seven counties in north-central Pennsylvania. Tri-County also serves a small percentage of customers in bordering counties of New York. Tri-County is not subject to utility regulation by any state or federal agency and is specifically exempted from any regulation by the Pennsylvania Public Utilities Commission (“PA PUC”) under the Pennsylvania Electric Cooperative Corporation Act. For the fiscal year ended December 31, 2000, Tri-County's operating revenues and net income were approximately $16 million and $552,000, respectively. At December 31, 2000, the assets of Tri-County were approximately $32 million in identifiable electric utility property, plant and equipment and approximately $10 million in other corporate assets.
Tri-County has one wholly-owned subsidiary, Wilderness, which is a Pennsylvania public-utility holding company exempt from all provisions of the Act, except section 9(a)(2), under section 3(a)(1) of the Act.
Claverack is engaged in the distribution of electricity to approximately 17,000 customers throughout a service territory of approximately 1,820 square miles in an eight county region in north-central and north-eastern Pennsylvania. Claverack also serves a small percentage of customers in bordering counties in New York. Claverack wholly-owns one nonutility subsidiary, Susquehanna Energy Plus, Inc., doing business as Tioga Energy. Tioga Energy also jointly owns Tioga Propane with Wellsboro. Like Tri-County, Claverack is not subject to utility regulation by any state or federal agency and is specifically exempted from any regulation by the PA PUC under the Pennsylvania Electric Cooperative Corporation Act. For the fiscal year ended December 31, 2000, Claverack's operating electric revenues and net income were approximately $18 million and $300,000, respectively. At December 31, 2000, Claverack's assets were approximately $48 million consisting of approximately $40 million in identifiable electric utility property, plant and equipment and approximately $8 million in other corporate assets.
C&T is a Pennsylvania corporation formed for the purpose of acquiring and holding the common stock of Citizens' Electric Company (“Citizens”). Tri-County and Claverack each own 50% of the issued shares of C&T, 1,000 shares each of common stock. C&T's sole
Citizens, a Pennsylvania public-utility company, is principally engaged in the distribution of electricity to approximately 6,300 customers in an approximately 55 square mile service territory in parts of two counties in central Pennsylvania. Citizens is subject to regulation as a public-utility company as to retail electric rates and other matters by the PA PUC. For the fiscal year ended December 31, 2000, Citizens' operating revenues and net income were approximately $9.3 million and $191,000, respectively. Assets of Citizens were approximately $8.4 million consisting of approximately $5.2 million in identifiable electric utility property, plant and equipment and approximately $3.2 million in other corporate assets.
On October 4, 2000, C&T entered into an agreement to purchase the Pennsylvania and New York natural gas assets of NUI Utilities, Inc (“NUI”) (“Asset Sale Agreement”). The Asset Sale Agreement provides that C&T shall purchase substantially all of the natural gas assets of NUI located in Pennsylvania and New York (“Acquisition”). Upon consummation of the Acquisition, C&T will transfer its ownership interest in the NUI assets to Valley. Upon the transfer of the assets to Valley, Valley will issue 1000 shares of common stock, all of which will be held by C&T (“Stock Acquisition”). The shareholders of C&T and NUI have approved the Stock Acquisition at their respective shareholder meetings.
Valley will be a public-utility company as defined in section 2(a)(5) of the Act. Valley will be engaged in the business of selling and distributing natural gas in parts of one county in north-central Pennsylvania and in portions of two counties in south-central New York. Valley will serve approximately 6,300 retail customers in a 104 square mile territory lying substantially within the Commonwealth of Pennsylvania with the remaining portion in the state of New York. Approximately 5,000 of Valley's customers will be located in Pennsylvania with the remaining 1,300 customers located in New York. Valley will be an investor-owned public-utility subject to regulation by the PA PUC and the New York Public Service Commission.
Each of C&T, Wilderness, Tri-County and Claverack requests an order under section 3(a)(1) exempting it from all provisions of the Act except 9(a)(2) following consummation of the Stock Acquisition. Each states that it will remain predominantly intrastate in character and carry on its business substantially in Pennsylvania, the state in which each company and every material public-utility company subsidiary are organized. In the alternative, Tri-County and Claverack, request an order under section 3(a)(2), exempting it from all provisions of the Act except 9(a)(2).
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to delete existing CBOE Rule 8.91(d) that prohibits a member affiliated with a Designated Primary Market-Maker (“DPM”) from acting as a floor broker in any trading crowd in which that DPM is the appointed DPM. The text of the proposed rule change is available at the Office of the Secretary, CBOE and at the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
In 1998, CBOE filed a proposed rule change to update and reorganize its rules relating to the Exchange's DPM program.
The Commission approved CBOE Rule 8.91(d) in connection with the Exchange's DPM program.
CBOE Rule 8.91(d) was added to the revised DPM rules for a very narrow
In 1998, most DPMs were closely held entities and only about half of CBOE's equity option crowds were part of the DPM program. Since CBOE filed the proposal to implement CBOE Rule 8.91(d), there have been significant developments in the trading environment on CBOE, as well as in the entire industry. Somewhat recently, CBOE expanded the DPM program to virtually all trading crowds on the CBOE floor.
CBOE represents that with this growing trend toward consolidation, member firms and potential members are precluded from pursuing new trading operations simply because a subsidiary or an affiliated company holds a DPM allocation(s) or is conducting a floor brokerage operation on CBOE. Even more serious is that current CBOE floor brokers would be required to discontinue existing operations simply because the floor broker's firm is included in a legitimate merger or acquisition transaction that creates an affiliation with the DPM operation, despite the fact that the DPM is a wholly separate entity with little or no direct managerial control over the floor brokers' operations. The CBOE represents that this was not the desired effect of CBOE Rule 8.91(d).
Additionally, in the absence of CBOE Rule 8.91(d), the CBOE believes that any attempt by a DPM organization to circumvent its obligations, in the manner proscribed by the Exchange in proposing Rule 8.91(d) would be covered by existing rules of the Exchange.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
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. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing will also be available for inspection and copying at the principal offices of the Exchange. All submissions should refer to File No. SR-CBOE-2002-16 and should be submitted by June 7, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
In FR Document No. 02-11394, beginning on page 30989 for Wednesday, May 8, 2002, the heading is corrected as set forth above and the first sentence of the second paragraph of Section III, Discussion, on page 30990 was incorrectly stated. The sentence should read as follows:
After careful review, the Commission finds that the MSRB's proposed rule change consisting of an amendment to Rule G-14, on reports of sales and purchases, meets the statutory standard.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to: (1) Institute a fee for the regulatory services provided in connection with the operation of The Nasdaq Stock Market; (2) expand the market data revenue available for sharing with members under NASD Rule 7010(a)(2) by eliminating the deduction for the cost of regulatory services provided by NASD Regulation, Inc. (“NASDR”) and increasing the percentage of eligible revenue that is shared; and (3) extend the pilot period with respect to which market data revenue sharing is available through December 31, 2002.
The proposed rule change is effective on filing, but Nasdaq will implement the proposed rule change beginning on June 1, 2002, for a pilot period running through December 31, 2002. Accordingly, the first regulatory fee will be based upon market activity during the month of June, and the last fee under the pilot will be based upon market activity during the month of December. The increase in market data revenue sharing will apply to trade reporting activity from June through December.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
(a) (1) No change.
(A) For a pilot period lasting [until]
(B) Definitions. The following definitions shall apply to this Rule:
(i) “Eligible Revenue” shall mean[:]
[a.] The portion of the net distributable revenues that Nasdaq, through the NASD, is eligible to receive under the Nasdaq UTP Plan, that is attributed to the Nasdaq Level 1 Service for Eligible Securities.[, minus]
[b. The portion of the fee charged to Nasdaq by NASD Regulation, Inc. for regulatory services allocated to the Nasdaq Level 1 Service for Eligible Securities.]
(ii) “Eligible Securities” shall mean all Nasdaq National Market securities and any other security that meets the definition of “Eligible Security” in the Nasdaq UTP Plan.
(iii) “Member's Volume Percentage” shall mean the average of:
a. The percentage derived from dividing the total number of trades in Eligible Securities that the member reports in accordance with NASD trade reporting rules to the Automated Confirmation Transaction Service (“ACT”) by the total number of trades in Eligible Securities reported to ACT by NASD members, and
b. The percentage derived from dividing the total number of shares represented by trades in Eligible Securities that the member reports in accordance with NASD trade reporting rules to ACT by the total number of shares represented by all trades in Eligible Securities reported to ACT by NASD members.
(iv) “Nasdaq UTP Plan” shall mean the Joint Self-Regulatory Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privilege Basis.
(b)-(p) No change.
In its filing with the Commission, Nasdaq 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. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to change the manner in which it shares tape revenue with NASD members that report trades in Nasdaq-listed securities to Nasdaq's Automated Confirmation Transaction Service (“ACT”), and is instituting a direct fee for the regulatory services provided in connection with the operation of The Nasdaq Stock Market. Nasdaq is making these changes to ensure that Nasdaq can effectively compete with exchanges that trade Nasdaq securities on an unlisted trading privileges basis (“UTP Exchanges”) without impairing the effectiveness of Nasdaq's regulatory program.
In the past, Nasdaq has funded the costs associated with regulatory services through the market data revenue that it receives through the NASD, under the Joint Self-Regulatory Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privilege Basis (the “Nasdaq UTP Plan” or the “Plan”). The portion of this revenue used to fund regulation may be characterized as an implicit fee for regulatory services, based on the magnitude of trade reporting activity. Recently, however, UTP Exchanges have expanded their programs for trading Nasdaq securities and have begun sharing the market data revenue that they receive under the Plan with market participants that execute and/or report trades through their facilities. Nasdaq has also instituted a program for sharing market data revenue with members, but shares only a portion of the revenues remaining after funding its regulatory costs.
Nasdaq has concluded that financing regulatory services out of market data revenue divorces the costs of regulation from the marketplace activities that necessitate it and thereby reduces the transparency of these costs to market participants. Nasdaq is also concerned that using market data revenue for this purpose may ultimately prove untenable in an environment where the sharing of market data revenues has become a basis for competition. Accordingly, Nasdaq is implementing a direct, explicitly formulated fee on members for regulatory services and is eliminating the deduction for regulatory costs from its market data revenue sharing program. At the same time, Nasdaq will increase the amount of tape revenue shared with NASD members that trade report Nasdaq securities to Nasdaq.
The Act imposes obligations on self-regulatory organizations to oversee the activities of their members. Currently, the NASD divides its regulatory responsibilities with respect to The
Nasdaq bears the cost of all of these regulatory services, however: Directly, in the case of the MarketWatch Department, and through payments to NASDR in the case of its Market Regulation Department. If the Commission grants Nasdaq's application to register as a national securities exchange, Nasdaq will be directly responsible for regulation of its members, but will discharge many of its responsibilities through a Regulatory Services Agreement with NASDR, under which Nasdaq will continue to pay NASDR for services provided. Thus, the financial burden associated with regulation will remain largely unchanged following exchange registration.
Nasdaq's traditional practice of funding regulatory costs out of market data revenue
Fragmentation of trade reporting data will make Nasdaq's regulatory program less effective and more costly, however, because NASDR will not have ready access to information about trades reported to UTP Exchanges. This will make it more difficult for NASDR to detect a range of abuses, including insider trading, wash sales, short sale rule violations, and violations of best execution obligations and limit order protection obligations. For example, a party wishing to trade on the basis of material non-public information might distribute its trading between market venues, making it less likely that the trades observed by any one regulator would give rise to suspicion. If an investigation of fraudulent conduct were commenced, moreover, NASDR would have to obtain information about suspicious trades from UTP Exchanges and/or their members. In time-sensitive investigations, the resulting delays may prevent regulators from taking prompt action to stop the fraudulent conduct. Moreover, the ultimate outcome of such an investigation may be adversely affected if the trade reporting rules of the UTP Exchange do not require the same range of information as NASD/Nasdaq trade reporting rules.
Nasdaq believes that the Commission must develop a policy response to the regulatory challenges posed by fragmentation of trade reporting activity. To enhance its ability to fulfill its own regulatory obligations, however, Nasdaq also believes that a restructuring of its traditional mechanisms for funding regulatory services is necessary. Rather than using a shrinking pool of market data revenue to underwrite regulation, Nasdaq believes that it must institute a direct charge on members. Such a charge will ensure that each member pays its fair share of the regulatory costs necessitated by its participation in the Nasdaq market. It will also provide Nasdaq with flexibility to share market data revenue in a manner consistent with UTP exchanges, rather than using these revenues to cross-subsidize regulation.
For the remainder of 2002, Nasdaq proposes to fund the costs associated with regulation of The Nasdaq Stock Market by imposing a fee based upon the number of markets that a member makes in Nasdaq securities (
To a large extent, the regulatory costs incurred by Nasdaq are technological: The costs associated with developing, operating, and maintaining systems that are capable of storing and analyzing vast quantities of market data. These systems include Nasdaq MarketWatch's Surveillance Delivery Real-Time (“SDR”) system, which conducts real-time analysis of quote and trade information, as well as third-party news sources, for unusual market activity or conduct that may violate marketplace
To be sure, there may be other aspects of a member's activity that create regulatory costs. Accordingly, during the remaining months of 2002, Nasdaq will conduct an extensive analysis of the costs incurred to regulate particular market activities (
Nasdaq's total regulatory costs for the period from June 1, 2002 to December 31, 2002 are expected to be approximately $38,967,000: $3,967,000 for the operation of the MarketWatch Department and $35,000,000 to be paid to NASDR for the services that it provides.
Because all ACT records (clearing and non-clearing, tape and non-tape) have regulatory costs associated with them, it could be argued that a portion of the regulatory fee should be tied directly to the number of records in which a member is a reporting party. Some market participants, however, routinely interpose themselves as a counter party to their customers' trades, and therefore use multiple ACT records to report a single transaction fee: A fee tied directly to the number of records would impose a heavy burden upon such market participants, in effect penalizing them for their business model and the patterns of ACT usage that it dictates. To avoid this result, the number of ACT records used to calculate each member's share is the
The regulatory charge assigned to some members may be higher than the implicit fee that they would have “paid” under the old system for funding regulation. Although Nasdaq believes that the ultimate goal of an explicit regulatory fee must be to charge each member the regulatory costs to which its activities give rise, the pilot fee that Nasdaq is introducing itself represents a transitional step between the implicit fee and the more precisely calibrated fee that Nasdaq will develop this year. Accordingly, to ease the transition, the proposed rule change incorporates a fee reduction, calculated with reference to the difference between a member's regulatory fee and the implicit fee that the member paid, or would have paid, during that month or any preceding month of 2002. Specifically, all members whose regulatory fee in a particular month exceeds the highest implicit fee
In addition, Nasdaq will be eliminating the deduction of regulatory charges from the pool of revenue eligible for sharing under its market data revenue sharing program, and increasing the percentage of eligible revenue shared from 80% to 90%. As a result, from Nasdaq's revenue perspective, it is expected that the net effect of all the changes made by this filing will be revenue neutral or revenue diminishing. Particular members, however, may pay more or less, on a net basis, than they would have without these changes.
In particular, members that choose to report a significant number of trades through non-Nasdaq facilities will pay more than under an implicit fee model, but Nasdaq presumes that they choose
Nasdaq believes the proposed rule change is consistent with the Act, including section 15A(b)(5) of the Act,
Nasdaq believes that the proposed rule change will not 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.
The proposed rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Association. All submissions should refer to file number SR-NASD-2002-61 and should be submitted by June 7, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On July 12, 2001, the National Association of Securities Dealers, Inc. (“NASD”), through its subsidiary, The Nasdaq Stock Market, Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The OTCBB is an automated quotation service that displays real-time quotes, last-sale prices, and volume information in over-the-counter (“OTC”) equity securities.
The OTCBB operates pursuant to NASD Rule 6500
A market maker would submit the Form 211 and the Addendum to the NASDR OTC Compliance Unit. If the NASDR OTC Compliance Unit “clears” the security for quotation, Nasdaq's Market Data Integrity Unit would notify the market maker that it has been registered in the security and that it may enter a quote for that security on the OTCBB. Once cleared, the security would have “eligible” status. During the eligible period, Nasdaq administers a frequency-of-quotation test. The test must be satisfied before the security is identified as “active.” To become active, the security must have been quoted on the OTCBB on at least 12 business days during the preceding 30 calendar days, with no more than four consecutive business days without quotations.
Proposed NASD Rule 6540(b) would permit an ATS or ECN to participate in the OTCBB in the same way that a market maker currently participates. If the security were not “active,” the ATS or ECN would be required to provide the same information required by the Form 211 Addendum.
In addition, ATSs and ECNs that wish to participate in the OTCBB would be required to comply with all other OTCBB rules applicable to market makers. For example, the OTCBB system does not permit a market maker to post a firm quote for less than the minimum size required by NASD Rule 6750.
The Commission received seven comments from six commenters in response to the proposal.
The fifth commenter—GlobeNet, an ATS that currently operates a matching system for orders in OTCBB securities and that seeks to participate in the OTCBB—also advocated approval of the proposal. In GlobeNet's view, consolidating the quotes of market makers and ATSs on the OTCBB would facilitate the search by broker-dealers for the best price for their customers' orders. GlobeNet also stated that Nasdaq's proposal would enhance fair competition by allowing ATSs and market makers to compete on equal terms and would encourage dealers in OTCBB securities to compete with ATSs on price. GlobeNet cautioned, however, that it did not believe that the proposal was the ideal means to allow ATS and ECN participation on the OTCBB. GlobeNet noted that the NASD's proposal was structured to treat an ATS as a market maker, even though an ATS operates in a very different manner than a market maker.
In its second comment letter that responded to the views and concerns raised by other commenters, GlobeNet argued that its business model should not be undercut by precluding its ability to charge transaction fees. GlobeNet stated, nevertheless, that “the ability of GlobeNet to participate in the OTCBB is of such paramount importance to our ability to compete on a level playing field with market makers in the OTCBB that we reluctantly would acquiesce for the time being to a Nasdaq decision to reflect our transaction fees in the GlobeNet quote on the OTCBB.”
The sixth commenter, Niehoff, was the only commenter who strongly opposed the NASD's proposal. Niehoff characterized the proposal as “clearly anti-competitive” and “a thinly disguised effort by Nasdaq to dictate the terms and conditions under which
On November 27, 2001, Nasdaq submitted a response to the comments noted above.
With respect to the comment submitted by Niehoff, Nasdaq stated that Niehoff did not offer specific reasons why he believes the proposal to be anti-competitive. Nasdaq believes, to the contrary, that the proposal is pro-competitive because it would broaden participation on the OTCBB while treating all participants equally. Also, Nasdaq believes that all ATSs and ECNs that seek to participate in the OTCBB must be NASD members; otherwise, the NASD would not have jurisdiction to regulate and oversee all participants. Nasdaq further stated that ATSs and ECNs would participate by posting quotes on the OTCBB through a Nasdaq Workstation II or an application program interface, as market makers currently do. According to Nasdaq, the costs to ATSs and ECNs of participation in the OTCBB would be the same as for market makers.
To address the issue of ATS and ECN fees, the NASD filed Amendment No. 1 to the proposal. As stated in Amendment No. 1, Nasdaq believes that, because market makers that enter quotes in the OTCBB are not permitted to charge access or post-transaction fees over and above their posted quotes, a participating ATS or ECN should be similarly prohibited from charging such fees, unless such fees were incorporated in its posted quote. Nasdaq indicated that the terms “access fee” and “post-transaction fee” both refer to fees charged by an ATS or ECN to participants with whom the ATS or ECN does not have a subscriber agreement. Typically, the fees are assessed on a per-share basis each time the non-subscriber accesses the posted quote of the ATS or ECN.
Nasdaq proposed to add new paragraph (c) to NASD Rule 6540 to reflect the foregoing. Paragraph (c) of the original proposal would become paragraph (d). Paragraph (b) is unchanged from the original proposal. NASD Rule 6540 would therefore read as follows. New text is italicized:
(a) No change.
(b)
(c)
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the regulations thereunder applicable to the NASD.
The Commission finds that participation by ATSs and ECNs in the OTCBB will enhance competition in the marketplace for OTC equity securities. In the Commission's view, the proposal will foster competition because a greater number of market participants will be able to display their quotations on the OTCBB. Moreover, quotations for OTCBB securities will now be capable of being displayed in a single system, so that broker-dealers that execute orders in such securities can more readily ascertain the best prices.
As proposed in Amendment No. 1, an ATS or ECN that posts a quote for a security on the OTCBB may charge a fee to a non-subscriber for executing against that quote, provided that the fee is reflected in the quote. The Commission finds that Nasdaq's approach to ATS and ECN fees with respect to OTCBB participation is consistent with the Act.
In addition, the Commission expects that the NASD will address how transactions on the OTCBB that result from the posted quote of an ATS or ECN will be reported, cleared, and confirmed in light of the fact that such quote must include non-subscriber access or post-transaction fees, if any.
The Commission also believes that it is reasonable for the NASD to require ATSs and ECNs that wish to post quotes on the OTCBB to comply with the same obligations as a market maker. A broker-dealer is subject to Rule 15c2-11 whenever it places a quotation
The Commission does not believe that the commenters raised any issue that would preclude approval of the proposed rule change. In particular, the Commission disagrees with one commenter's view that “the Commission should republish the proposal with a thorough analysis of the issues raised and seek further public comment.”
The Commission finds good cause for approving Amendment No. 1 to the proposal prior to the thirtieth day after the date of public of notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2001-44 and should be submitted by June 7, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend, until June 30, 2002, the effectiveness of the amendments to Sections 312.01, 312.03 and 312.04 of the Exchange's Listed Company Manual with respect to the definition of a “broadly-based” stock option plan, which were approved by the Commission on a pilot basis (the “Pilot”) on June 4, 1999.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On July 13, 2000, the Exchange filed a proposed rule change seeking to extend the effectiveness of the Pilot until September 30, 2003.
The Exchange proposes to further extend the effectiveness of the Pilot until June 30, 2002 to provide additional time to evaluate the issues presented by the Pilot, in light of recently adopted requirements relating to disclosure of equity compensation plan information.
The Exchange believes that the proposed rule change is consistent with Section 6(b)(5) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change (1) does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission, consistent with the protection of investors and the public interest, has determined to make the proposed rule change to extend the Pilot through June 30, 2002, become operative on May 13, 2002. The Commission notes that unless the Pilot is extended, the Pilot will expire and the provisions of Sections 312.01, 312.03, and 312.04 of the Exchange's Listed Company Manual that were amended in the Pilot will revert to those in effect prior to June 4, 1999. The Commission believes that such a result could lead to confusion.
The Commission recognizes that the Pilot has generated many comment letters from commenters that do not support the NYSE's definition of “broadly-based” stock option plans under the Pilot.
Based on these reasons, the Commission believes that it is consistent with the protection of investors and the public interest that the proposed rule change to extend the Pilot through June 30, 2002, become
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. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the above-mentioned self-regulatory organization. All submissions should refer to the File No. SR-NYSE-2002-18 and should be submitted by June 7, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
In accordance with a notice received from the Federal Emergency Management Agency, dated May 9, 2002, the above numbered declaration is hereby amended to include Boyle, Casey, Clay, Floyd, Jackson, Knott, Knox, Larue, Laurel, Letcher, Marion, Martin, McCreary, Nelson, Pike, Pulaski, Rockcastle, Taylor, Washington and Whitley Counties in the Commonwealth of Kentucky as disaster areas due to damages caused by severe storms, tornadoes and flooding occurring on April 27, 2002 and continuing.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the previously designated location: Adair, Anderson, Bell, Breathitt, Estill, Garrard, Green, Harlan, Johnson, Lawrence, Lee, Leslie, Lincoln, Madison, Magoffin, Mercer, Owsley, Perry, Russell, Spencer and Wayne Counties in the Commonwealth of Kentucky; Campbell, Claiborne and Scott Counties Tennessee; Buchanan, Dickenson and Wise Counties Virginia; and Mingo and Wayne Counties West Virginia. All other contiguous counties have been previously declared.
The economic injury numbers assigned are 9P6400 for Tennessee; 9P6500 for Virginia; and 9P6600 for West Virginia.
All other information remains the same,
The Social Security Administration (SSA) publishes a list of information collection packages that will require clearance by the Office of Management and Budget (OMB) in compliance with Pub. L. 104-13 effective October 1, 1995, The Paperwork Reduction Act of 1995. 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 on ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology.
Written comments and recommendations regarding the information collection(s) should be submitted to the OMB Desk Officer and the SSA Reports Clearance Officer and at the following addresses:
I. The information collections listed below will be submitted to OMB within 60 days from the date of this notice. Therefore, your comments should be submitted to SSA within 60 days from the date of this publication. You can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at 410-965-0454, or by writing to the address listed above.
Form SSA-L5061 is used by SSA to provide a nationally uniform vehicle for collecting information from landlords in making a rental subsidy determination in the Supplemental Security Income (SSI) Program. The information is used in deciding whether income limits are met for SSI eligibility. The respondents are landlords who provide subsidized rental arrangements to SSI applicants and recipients.
SSA is required by law to establish procedures for collecting information on whether an SSI recipient who becomes institutionalized (e.g., hospital, nursing home) may be eligible for continued benefits, based on the full federal benefit rate, if a physician certifies that he expects the period of medical confinement will last no more than 90 days. The individual (or someone acting on his behalf) must demonstrate that he needs to pay some or all of the expenses of maintaining the home to which he expects to return. The respondents are applicants for SSI benefits.
The information collected on Form SSRO-3-293 (formerly SSA-293) is used by SSA to document the earliest possible filing date and to determine potential eligibility for SSI child's benefits. The respondents are individuals, such as hospital social workers, who inquire about SSI eligibility for low birth weight babies.
Form SSA-8125 and SSA-L8125-F6 collect interim assistance reimbursement (IAR) information from the States that provide such assistance. Form SSA-8125 is used in situations where IAR can be distributed directly to the recipient after the State has deducted the amount of assistance it provided. Form SSA-L8125-F6 is used in situations where a recipient entitled to underpayments has received IAR from a State and SSA will control the benefit through the installment process. SSA uses the information collected through these forms for accounting and auditing purposes in administering the IAR process. The respondents are States that provide IAR to SSI claimants.
The Ticket to Work program (TTW) was established by the 1999 Ticket to Work and Work Incentives Improvement Act. The program will provide eligible Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) disability beneficiaries with a Ticket, which can be used to obtain vocational rehabilitation (VR) or employment services through participating providers, called Employment Networks (ENs).
The reason for the TTW program is that some beneficiaries currently lack the resources necessary to return to work at a level above the Substantial Gainful Activity (SGA) level, either because they do not have easy access to such services, or because they lack the incentive to invest resources in return to work activities because of a variety of factors affecting the decision to work. TTW confers upon a beneficiary a means to access those resources in a less restrictive manner than under the traditional program. The manner in which the program is being implemented is expected to increase beneficiary demand for employment-related services and activities. It is also expected to increase the number and diversity of providers in response to the less restrictive participation requirements and increased consumer demand for services.
The National Employment Activity and Disability Survey will collect data on the work-related activities of SSI and Old Age, Survivors and Disability Insurance (OASDI) beneficiaries as the TTW program, and other initiatives designed to improve beneficiary employment outcomes, are implemented. The TTW Survey is specifically designed to be a significant resource for the formal evaluation of TTW, but SSA anticipates that the survey will provide useful information for a variety of evaluation and policy analysis purposes, especially related to current efforts that attempt to improve return to work. The survey questionnaire focuses on information about beneficiaries and their work-related activities that cannot be obtained from SSA's administrative records. The survey will provide information about: (1) Beneficiaries who assign their Tickets to ENs, and their experience in the program; (2) beneficiaries who do not assign their Tickets, and the reasons why they do not, including involuntary non-participants; (3) the employment outcomes of Ticket users and other beneficiaries; and (4) the use of employment services by Ticket users and other beneficiaries. The respondents will be selected from SSI and OASDI disabled beneficiaries who meet the Ticket to Work program eligibility requirements.
SSA uses the information from public broadcasting systems to determine media interest in broadcasting SSA's public information materials. The respondents are radio and television stations.
SSA uses the information collected on Form SSA-9584 to determine whether policies and practices of State mental institutions conform with SSA's regulations in the use of benefits and whether an institution is performing other duties and responsibilities required of a representative payee. The information also provides a basis for conducting an onsite review of the institution and is used in preparing the subsequent report of findings. The respondents are State mental institutions that serve as representative payees.
Form SSA-3462 is completed by SSA personnel via telephone or personal interview, and it is used to determine potential eligibility for SSI benefits. The respondents are individuals who inquire about SSI eligibility for themselves or someone else.
II. The information collections listed below have been submitted to OMB for clearance. Your comments on the information collections would be most
The Social Security Act requires applicants to furnish medical and other evidence and information to prove they are disabled. Applicants for disability benefits will be given the option to provide information needed to help determine they are disabled through the Internet. The Internet Social Security Disability Report, which is similar to the Form SSA-3368-BK, Disability Report-Adult, will collect allegations of disability and gather information about the disabling condition and sources of medical evidence. Collecting this information is critical to case development and adjudication. The information on the Disability Report, together with other evidence and information, will be used by State Disability Determination Services (who make disability decisions on behalf of SSA) to develop medical evidence, assess the alleged disability, and make a determination on whether or not the applicant is disabled under the Act. SSA plans to conduct a limited pilot of the Internet Social Security Disability Report followed by national implementation. The respondents are applicants for title II and title XVI disability benefits.
The data collected by SSA on Form SSA-3033 is used to determine if the claimant meets the disability requirements of the law, when the claimant returns to work after the alleged or established onset date of disability. When a possible unsuccessful work attempt or nonspecific subsidy is involved, Form SSA-3033 will be used to request a description of the employee's work effort. The respondents are employers of OASDI and SSI disability applicants and beneficiaries.
Social Security Administration (SSA).
Notice of the renewal of an existing computer matching program which is scheduled to expire on June 30, 2002.
In accordance with the provisions of the Privacy Act, as amended, this notice announces the renewal of an existing computer matching program that SSA is currently conducting with the States.
SSA will file a report of the subject matching program with the Committee on Governmental Affairs of the Senate; the Committee on Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The renewal of the matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefax to (410) 966-2935 or writing to the Acting Associate Commissioner for Program Support, 2-Q-16 Operations Buildings, 640l Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Acting Associate Commissioner for Program Support as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by establishing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State, or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the Data Integrity Boards' approval of the match agreements;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating or denying an individual's benefits or payments.
We have taken action to ensure that all of SSA's computer matching programs comply with the requirements of the Privacy Act, as amended.
SSA and the States.
Section 1137 of the Social Security Act requires individual States to have in effect an income and eligibility verification system meeting certain requirements in order to administer certain State-administered income, food assistance, and medical assistance programs.
A chief purpose of this matching program is to facilitate administration of this provision. Individual agreements
The matching program will also be used to implement provisions of Pub. L. 104-193, the Personal Responsibility and Work Reconciliation Act of 1996, involving the significance of Social Security coverage information to the eligibility of certain aliens for some Federal and State public benefits. Under this matching program, SSA will disclose certain Social Security coverage information on specific persons to States administering appropriate benefit programs.
Sections 1106 and 1137 of the Social Security Act; sections 402, 412, 421 and 435 of Pub. L. 104-193; section 202(x)(3)(B)(iv) of the Social Security Act; section 205(r)(3) of the Social Security Act; and relevant provisions of the Internal Revenue Code under 26 U.S.C. 6103.
States will provide SSA with names and other identifying information of appropriate benefit applicants or recipients. Specific information from participating States will be matched as provided in the agreement for the specific program with the following systems of records maintained by SSA:
1. SDX—Supplemental Security Income and Special Veterans Benefit Record (SSR), SSA/OSR (60-0103);
2. BENDEX—Master Beneficiary Record (MBR), SSA/OSR (60-0090) and the Earnings Recording and Self-Employment Income System, SSA/OSR (60-0059);
3. EVS—Master Files of Social Security Number (SSN) Holders and SSN Applications, SSA/OSR (60-0058);
4. SVES—SSR, SSA/OSR (60-0103); MBR, SSA/OSR (60-0090); the Earnings Recording and Self-Employment Income System, SSA/OSR (60-0059); the Master Files of SSN Holders and SSN Applications, SSA/OSR (60-0058); and the Prisoner Update Processing System (PUPS), SSA/OSR (60-0269);
5. Quarters of Coverage Query—the Earnings Recording and Self-Employment Income System, SSA/OSR (60-0059) and the Master Files of SSN Holders and SSN Applications, SSA/OSR (60-0058);
6. Prisoner Query—PUPS, SSA/OSR (60-0269); and
7. Death Query—Master Files of SSN Holders and SSN Applications, SSA/OSR (60-0058)—subsection referred to as the NUMIDENT.
SSA and the States will exchange information through the File Transfer Management System (FTMS). Cartridge or magnetic tape will be used in the event FTMS is inoperable.
The matching program will become effective no sooner than 40 days after notice of the matching program is sent to Congress and OMB, or 30 days after publication of this notice in the
Social Security Administration.
New system of records and proposed routine uses.
In accordance with the Privacy Act (5 U.S.C. 552a(e)(4) and (e)(11)), we are issuing public notice of our intent to establish a new system of records, the
The Consolidated Appropriations Act, 2001, Appendix F, section 911 amended the Social Security Act by adding section 1144. Section 1144 of the Social Security Act requires the Commissioner of Social Security to conduct outreach efforts to identify individuals entitled to benefits under the Medicare program under title XVIII who may be eligible for medical assistance for payment of the cost of Medicare cost-sharing under the Medicaid program.
We filed a report of the proposed new system of records and routine uses with the Chairman of the Senate Committee on Governmental Affairs, the Chairman of the House Reform Committee, and the Director, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on May 10, 2002. The proposed system will become effective on June 19, 2002, unless we receive comments that would result in a contrary determination.
Interested individuals may comment on this publication by writing to the SSA Privacy Officer, Social Security Administration, 3-A-6 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401. All comments received will be available for public inspection at the above address.
Ms. Pamela McLaughlin, Social Insurance Specialist, Social Security Administration, Room 3-C-2 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, telephone (410) 965-3677, e-mail:
On December 21, 2000, the President signed into law the Medicare, Medicaid, and State Children's Health Insurance Program (SCHIP) Benefits Improvement and Protection Act of 2000, as Appendix F of Public Law 106-554, the Consolidated Appropriations Act, 2001. Section 911 of Appendix F amended title XI of the Social Security Act by adding section 1144, which requires the Commissioner of Social Security to conduct outreach efforts to identify individuals entitled to benefits under the Medicare program under title XVIII who may be eligible for medical assistance for payment of the cost of Medicare cost-sharing under the Medicaid program.
In conducting the outreach efforts, the Agency shall furnish the agency of each State responsible for the administration of the Medicaid program and any other appropriate State agency with information consisting of the name and address of individuals residing in the State that the Agency determines may be eligible for medical assistance for payment of the cost of Medicare cost-sharing under the Medicaid program. Additionally, information may be disclosed to the General Accounting Office for its evaluation of the effort as required by the statute.
The proposed system will maintain relevant information about Social Security beneficiaries who either meet, or are about to meet, the requirements for Medicare (
We are proposing to establish routine uses of information that will be maintained in the proposed new system as discussed below.
We will disclose information under this routine use only in situations in which an individual may contact the Office of the President, seeking that office's assistance in a SSA matter on his or her behalf. Information would be disclosed when the Office of the President makes an inquiry and presents evidence that the office is acting on behalf of the individual whose record is requested.
We will disclose information under this routine use only in situations in which an individual may ask his or her congressional representative to intercede in an SSA matter on his or her behalf. Information would be disclosed when the congressional representative makes an inquiry and presents evidence that he or she is acting on behalf of the individual whose record is requested.
(a) His or her eligibility for benefits under a Social Security Act program;
(b) The amount of his or her benefit payment;
(c) Any case in which the evidence is being reviewed as a result of suspected fraud, concern for program integrity, quality appraisal, or evaluation and measurement activities.
We will disclose information under this routine use only as necessary to enable SSA to obtain information that will assist State or local governments (or their agents) in determining individuals' eligibility for medical assistance for payment of the cost of Medicare cost-sharing under the Medicaid programs.
We will disclose information under this routine use to State or local agencies to assist such agencies in administration of the Medicare Savings Programs. The purpose of this disclosure is to assist the agencies in establishing individuals' eligibility for such programs, to provide information necessary to enforce eligibility restrictions in such programs, and to combat and prevent fraud, waste and abuse in those programs.
(a) SSA, or any component thereof; or
(b) Any SSA employee in his/her official capacity; or
(c) Any SSA employee in his/her individual capacity where DOJ (or SSA where it is authorized to do so) has agreed to represent the employee; or
(d) The United States or any agency thereof where SSA determines that the litigation is likely to affect the operations of SSA or any of its components is party to litigation or has an interest in such litigation, and SSA determines that the use of such records by DOJ, a court, or other tribunal is relevant and necessary to the litigation, provided, however, that in each case, SSA determines that such disclosure is compatible with the purpose for which the records were collected.
Wage and other information which are subject to the disclosure provisions of the Internal Revenue Code (IRC) (26 U.S.C. 6103) will not be disclosed under this routine use unless disclosure is expressly permitted by the IRC.
We will disclose information under this routine use only as necessary to enable DOJ, a court, or other tribunal, to effectively defend SSA disability beneficiaries and recipients.
Under certain Federal statutes, SSA is authorized to use the service of volunteers and participants in certain educational, training, employment and community service programs. Examples of such statutes and programs are: 5 U.S.C. 311 regarding student volunteers; and 42 U.S.C. 2753 regarding the College Work-Study Program. We contemplate disclosing information under this routine use only when SSA uses the services of these individuals and they need access to information in this system to perform their assigned duties.
The Administrator of GSA and the Archivist of NARA are charged by 44 U.S.C. 2904, as amended, with promulgating standards, procedures and guidelines regarding record management and conducting records management studies. 44 U.S.C. 2906, as amended, provides that GSA and NARA are to have access to federal agencies' records and that agencies are to cooperate with GSA and NARA. In carrying out these responsibilities, it may be necessary for GSA and NARA to have access to information in this proposed system of records. In such instances, the routine use will facilitate disclosure.
The Privacy Act (5 U.S.C. 552a(b)(3)) and our disclosure regulations (20 CFR part 401) permit us to disclose information under a published routine use for a purpose, which is compatible with the purpose for which we collected the information. Section 401.150(c) of the regulations permits us to disclose information under a routine use where necessary to carry out SSA programs. Section 401.120 of the regulations provides that we will disclose information when a law specifically requires the disclosure. The proposed routine uses, numbered 1-6 above, will ensure efficient administration of the Medicare Savings Programs; the disclosure that would be made under routine use number 7 is required by Federal law. Thus, all of the routine uses are appropriate and meet the relevant statutory and regulatory criteria.
We will maintain information in the proposed system of records in electronic and paper form. Only authorized SSA personnel and contractor personnel who have a need for the information in the performance of their official duties will be permitted access to the information. Security measures include the use of access codes to enter the computer systems that will maintain the data, and storage of the computerized records in secured areas that are accessible only to employees who require the information in performing their official duties. Any manually maintained records will be kept in locked cabinets or in otherwise secure areas. Contractor personnel having access to data in the proposed system of records will be required to adhere to SSA rules concerning safeguards, access and use of the data.
SSA and contractor personnel having access to the data on this system will be informed of the criminal penalties of the Privacy Act for unauthorized access to or disclosure of information maintained in this system.
The proposed system will maintain information to determine a beneficiary's potential eligibility for Medicare Part B buy-in or for subsidized purchase of Medicare Part A. Information kept in the system will be used to increase Medicare buy-in applications and enrollments, and may be used by the General Accounting Office (GAO) for its evaluation of the effort as required by the statute. Therefore, we do not anticipate that the proposed system of records will have an unwarranted adverse effect on the rights of individuals.
Medicare Savings Programs Information System, Social Security Administration, Office of Program Benefits.
None.
Social Security Administration, Office of Systems Operations, 6401 Security Boulevard, Baltimore, Maryland 21235.
All Social Security beneficiaries who have attained age 65 or are about to attain age 65, disabled Social Security beneficiaries who have received 24 months of Social Security benefits, beneficiaries with a disabling impairment(s) who lost entitlement to free Medicare Part A because of work and certain individuals who suffer from end-stage renal disease.
This system contains information about the beneficiary from records available to SSA. This information may include the individual's name, Social Security number (SSN), date of birth, address, marital status and income. Information will be obtained from other SSA systems of records (
Section 1144 of the Social Security Act (42 U.S.C. 1320b-14) as added by Public Law 106-554, the Consolidated Appropriations Act, 2001.
Information in this system will be used to determine a beneficiary's potential eligibility for Medicare Part B buy-in or for subsidized purchase of Medicare Part A. Information kept in the system will be used to increase Medicare buy-in applications and enrollments, and may be used by the General Accounting Office (GAO) for its evaluation of the effort as required by the statute.
Disclosure may be made for routine uses as indicated below. However, disclosure of information constituting “return or return information” within the scope of the Internal Revenue Code (IRC) (26 U.S.C. 6103) will not be disclosed unless disclosure is authorized by that statute.
1. To the Office of the President for the purpose of responding to an individual pursuant to an inquiry received from that individual or from a third party on his or her behalf.
2. To a congressional office in response to an inquiry from that office made at the request of the subject of a record.
3. To third parties in situations where the party to be contacted has, or is expected to have, information relating to the individual's eligibility for, or entitlement to, benefits under a Social Security Act program when the data are needed to establish the validity of evidence or to verify the accuracy of information presented by the individual, and it concerns one or more of the following:
(a) His or her eligibility for benefits under a Social Security Act program;
(b) The amount of his or her benefit payment;
(c) Any case in which the evidence is being reviewed as a result of suspected fraud, concern for program integrity, quality appraisal, or evaluation and measurement activities.
4. To State or local agencies (or agents on their behalf), for the purpose of assisting SSA in the efficient administration of its programs.
5. To the Department of Justice (DOJ), a court, or other tribunal, or other third party before such tribunal when:
(a) SSA, or any component thereof, or
(b) Any SSA employee in his/her official capacity; or
(c) Any SSA employee in his/her individual capacity where DOJ (or SSA where it is authorized to do so) has agreed to represent the employee; or
(d) The United States or any agency thereof where SSA determines that the litigation is likely to affect the operations of SSA of any of its components is party to litigation or has an interest in such litigation, and SSA determines that the use of such records
Wage and other information which are subject to the disclosure provisions of the IRC (26 U.S.C. 6103) will not be disclosed under this routine use unless disclosure is expressly permitted by the IRC.
6. To student volunteers and other workers, who technically do not have the status of Federal employees, when they are performing work for SSA as authorized by law, and they need access to personally identifiable information in SSA records in order to perform their assigned Agency functions.
7. Non-tax return information which is not restricted from disclosure by Federal law may be disclosed to the General Services Administration (GSA) and the National Archives and Records Administration (NARA) under 44 U.S.C. 2904 and 2906, as amended by the NARA Act of 1984, for the use of those agencies in conducting records management studies.
Data may be stored in paper form and on magnetic media (
Records in this system are indexed and retrieved by the SSN and/or address.
Security measures include the use of access codes to enter the computer system, which will maintain the data, and storage of the computerized records in secured areas which are accessible only to employees who require the information in performing their official duties. Any paper records will be kept in locked cabinets or in otherwise secured areas. Contractor personnel having access to data in the system of records will be required to adhere to SSA rules concerning safeguards, access and use of the data. SSA and contractor personnel having access to the data will be informed of the criminal penalties of the Privacy Act for unauthorized access to or disclosure of information maintained in this system of records.
Electronic files and other files with personal identifiers are retained in secure areas accessible only to authorized personnel and will be disposed of as soon as they are determined to be no longer needed for contractor or SSA analysis. Means of disposal will be appropriate to the storage medium (
Director, Division of Representative Payment and Evaluation, Office of Program Benefits, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235.
An individual can determine if this system of records contains a record about him/her by writing to the systems manager(s) at the above address and providing his/her name, SSN or other information that may be in the system of records that will identify him/her. An individual requesting notification of records in person should provide the same information, as well as provide an identity document, preferably with a photograph, such as a driver's license. If an individual does not have identification documents sufficient to establish his/her identity, the individual must certify in writing that he/she is the person claimed to be and that he/she understands that the knowing and willful request for, or acquisition of, a record pertaining to another individual under false pretenses is a criminal offense.
If notification is requested by telephone, an individual must verify his/her identity by providing identifying information that parallels the record to which notification is being requested. If it is determined that the identifying information provided by telephone is insufficient, the individual will be required to submit a request in writing or in person. If an individual is requesting information by telephone on behalf of another individual, the subject individual must be connected with SSA and the requesting individual in the same phone call. SSA will establish the subject individual's identity (his/her name, SSN, address, date of birth and place of birth along with one other piece of information such as mother's maiden name) and ask for his/her consent in providing information to the requesting individual.
If a request for notification is submitted by mail, an individual must include a notarized statement to SSA to verify his/her identity or must certify in the request that he/she is the person claimed to be and that he/she understands that the knowing and willful request for, or acquisition of, a record pertaining to another individual under false pretenses is a criminal offense. These procedures are in accordance with SSA Regulations (20 CFR 401.40).
Same as “Notification procedures.” Requesters should also reasonably specify the record contents being sought. These procedures are in accordance with SSA Regulations (20 CFR 401.50).
Same as “Notification procedures.” Requesters also should reasonably identify the record, specify the information they are contesting, and state the corrective action sought and the reasons for the correction with supporting justification showing how the record is untimely, incomplete, inaccurate or irrelevant. These procedures are in accordance with SSA Regulations (20 CFR 401.65).
Data for the system are secured from other SSA systems of records (
None.
Notice.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
The following summarizes the information collection proposal to be submitted to OMB:
Public comments are being solicited to permit the agency to:
• Evaluate whether the proposed information collection is necessary for the proper performance of the functions of the agency.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including through the use of automated collection techniques or other forms of technology.
Public comments, or requests for additional information, regarding the collection listed in this notice should be directed to Keith D. Miller, Office of Overseas Schools, U.S. Department of State, Washington, DC 20520. He may be reached at 202-261-8200.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julianne Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State, (telephone: 202/619-6529). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
The Overseas Schools Advisory Council, Department of State, will hold its Annual Meeting on Friday, June 21, 2002, at 9:30 a.m. in Conference Room 1107, Department of State Building, 2201 C Street, NW., Washington, DC. The meeting is open to the public.
The Overseas Schools Advisory Council works closely with the U.S. business community in improving those American-sponsored schools overseas, which are assisted by the Department of State and which are attended by dependents of U.S. Government families and children of employees of U.S. corporations and foundations abroad.
This meeting will deal with issues related to the work and the support provided by the Overseas Schools Advisory Council to the American-sponsored overseas schools. The agenda includes a review of the recent activities of American-sponsored overseas schools and the overseas schools regional associations, a progress report on projects selected for the annual Program of Educational Assistance, and a presentation on the Council's project to develop a construction/renovation handbook for American-sponsored overseas schools.
Members of the general public may attend the meeting and join in the discussion, subject to the instructions of the Chair. Admittance of public members will be limited to the seating available. Access to the State Department is controlled, and individual building passes are required for all attendees. Persons who plan to attend should so advise the office of Dr. Keith D. Miller, Department of State, Office of Overseas Schools, Room H328, SA-1, Washington, DC 20522-0132, telephone 202-261-8200, prior to June 11, 2002. Each visitor will be asked to provide a date of birth and Social Security number at the time of registration and attendance and must carry a valid photo ID to the meeting. All attendees must use the C Street entrance to the building.
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice that, on May 3, 2002, the United States received from Canada a request for consultations under the Marrakesh Agreement Establishing the World Trade Organization (“WTO Agreement”) regarding the U.S. Department of Commerce (“DOC”) final countervailing duty determination concerning certain softwood lumber from Canada. Canada alleges that the initiation and conduct of the countervailing duty investigation, the final determination, the provision of
USTR invites written comments from the public concerning the issues raised in this dispute.
Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before May 31, 2002 to be assured of timely consideration by USTR.
Comments should be submitted to Sandy McKinzy, Monitoring and Enforcement Unit, Office of the General Counsel, Room 122, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, Attn: Softwood Lumber Final CVD Dispute, with a confirmation copy sent by fax to (202) 395-3640. Telephone: (202) 395-3582.
Amber L. Cottle, Assistant General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC (202) 395-3581.
Section 127(b) of the Uruguay Round Agreements Act (“URAA”) (19 U.S.C. 3537(b)(1)) requires that notice and opportunity for comment be provided after the United States submits or receives a request for the establishment of a WTO dispute settlement panel. Consistent with this obligation, but in an effort to provide additional opportunity for comment, USTR is providing notice that consultations have been requested pursuant to the WTO Dispute Settlement Understanding (“DSU”). If such consultations should fail to resolve the matter and a dispute settlement panel is established pursuant to the DSU, such panel, which would hold its meetings in Geneva, Switzerland, would be expected to issue a report on its findings and recommendations within six to nine months after it is established.
The notice of the DOC final countervailing duty determination concerning certain softwood lumber from Canada was published in the
In its panel request, Canada describes its claims in the following manner:
The measures at issue include the initiation and conduct of the investigation, the final determination, provision of expedited review, and other matters related to these measures. These measures are inconsistent with, and violate the obligations of the United States under Articles 1, 2, 10, 11, 12, 14, 15, 19, 22 and 32.1 of the SCM Agreement and Articles VI:3 and X:3 of GATT 1994 by:
1. Initiating the investigation,
(a) Without sufficient evidence of a subsidy, injury, or a causal link between the subsidized imports and the alleged injury, and
(b) On the basis of an application that failed to identify an appropriate applicant or its volume and value of production of the domestic like product;
2. Failing to make an objective assessment of the degree of support for the application by the domestic industry;
3. Imposing countervailing duties against programmes and policies that are not subsides within the meaning of Article 1.1 of the SCM Agreement and more specifically, by
(a) Treating stumpage as a “financial contribution”,
(b) Determining and measuring benefit through impermissible cross-border comparisons,
(c) Failing in its analysis of an alleged benefit to objectively assess the facts on the record of the investigation, and
(d) Presuming that an alleged benefit from stumpage passes through arm's-length transactions to downstream recipients;
4. Countervailing programmes and policies that are not “specific” within the meaning of Article 2 of the SCM Agreement;
5. Imposing countervailing duties at a higher rate than the alleged subsidy by inflating the subsidy rate by a number of impermissible means (including by attributing the entirety of the alleged stumpage benefit to only a portion of the products produced from logs, using demonstrably inaccurate data, and excluding certain shipments from its calculations);
6. Failing to grant or provide for expedited reviews; and
7. Failing to conduct its investigation in accordance with fundamental substantive and procedural requirements, including by failing to address significant evidence and arguments in its determination, by gathering and relying upon information not made available to the parties, by failing to issue timely decisions and provide reasonable schedules for questionnaire responses, briefing, and hearings, and by, in effect, improperly applying adverse facts available to cooperative parties.
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Comments must be in English and provided in fifteen copies to Sandy McKinzy at the address provided above. A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitting person. Confidential business information must be clearly marked “BUSINESS CONFIDENTIAL” in a contrasting color ink at the top of each page of each copy.
Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitting person believes that information or advice may qualify as such, the submitting person—
(1) Must so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” in a contrasting color ink at the top of each page of each copy; and
(3) Is encouraged to provide a non-confidential summary of the information or advice.
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR will maintain a file on this dispute settlement proceeding, accessible to the public, in the USTR Reading Room, which is located at 1724 F Street, NW., Washington, DC 20508. The public file will include non-confidential comments received by USTR from the public with respect to the dispute; if a dispute settlement panel is convened, the U.S. submissions to that panel, the submissions, or non-confidential summaries of submissions, to the panel received from other participants in the dispute, as well as the report of the panel; and, if applicable, the report of the Appellate Body. An appointment to review the public file may be made by calling the USTR Reading Room at (202) 395-6186. The USTR Reading Room is open to the public from 9:30 a.m. to 12
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Announcement of Railroad Safety Advisory Committee (RSAC) Working Group Activities.
FRA is updating its announcement of RSAC's working group activities to reflect their current status.
Trish Butera or Lydia Leeds, RSAC Coordinators, FRA, 1120 Vermont Avenue, NW., Mailstop 25, Washington, DC 20590, (202) 493-6213 or Grady Cothen, Deputy Associate Administrator for Safety Standards and Program Development, FRA, 1120 Vermont Avenue, NW., Mailstop 25, Washington, DC 20590, (202) 493-6302.
This notice serves to update FRA's last announcement of working group activities and status reports on January 17, 2002, (67 FR 2507). The eighteenth full Committee meeting was held February 13, 2002, at the Almas Temple in Washington, DC. The nineteenth meeting is scheduled for May 29, 2002.
Since its first meeting in April of 1996, the RSAC has accepted seventeen tasks. Status for each of the tasks is provided below:
The Cab Working Group has also considered issues related to cab temperature, and is expected to consider additional issues (such as vibration) in the future. Contact: Jeffrey Horn (202) 493-6283.
Please refer to the notice published in the
Pursuant to Title 49 Code of Federal Regulations (CFR) part 235 and 49 U.S.C. 20502(a), the following railroads have petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of the signal system or relief from the requirements of 49 CFR part 236 as detailed below.
CSX Transportation, Incorporated seeks approval of the proposed modification of the signal system on the two main tracks, between milepost CK-4.49 and Parsons Yard, milepost CK-4.54, on the Columbus Subdivision, C&O Division, near Columbus. The proposed changes consist of the discontinuance and removal of Signals H46, HA45, and HB45, and conversion of the method of operation from Rule D251 to Rule 105 between milepost CK-4.49 and milepost CK-4.54. The proposed changes are associated with the conversion of the automatic block signal system, westward from milepost CK-4.49, to a traffic control system.
The reason given for the proposed changes is to eliminate facilities no longer needed in present day operation.
Any interested party desiring to protest the granting of an application shall set forth specifically the grounds upon which the protest is made, and contain a concise statement of the interest of the party in the proceeding. Additionally, one copy of the protest shall be furnished to the applicant at the address listed above.
All communications concerning this proceeding should be identified by the docket number and must be submitted to the Docket Clerk, DOT Central Docket Management Facility, Room PI-401, Washington, DC 20590-0001. Communications received within 45 days of the date of this notice will be considered by the FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at DOT Central Docket Management Facility, Room PI-401 (Plaza Level), 400 Seventh Street, SW., Washington, DC 20590-0001. All documents in the public docket are also available for inspection and copying on the internet at the docket facility's Web site at
FRA expects to be able to determine these matters without an oral hearing. However, if a specific request for an oral hearing is accompanied by a showing that the party is unable to adequately present his or her position by written statements, an application may be set for public hearing.
National Highway Traffic Safety Administration, DOT.
Notice of NHTSA rulemaking status meeting.
This notice announces a public meeting at which NHTSA will answer questions from the public and the automobile industry regarding the agency's vehicle regulatory program.
The Agency's regular public meeting relating to its vehicle regulatory program will be held on Thursday, July 18, 2002, beginning at 9:45 a.m. and ending at approximately 12 p.m. at the Hyatt Regency Baltimore, on the Inner Harbor, 300 Light Street, Baltimore, Maryland 21202. Questions relating to the vehicle regulatory program must be submitted in writing with a diskette (Microsoft Word) by Thursday, June 20, 2002, to the address shown below or by e-mail. If sufficient time is available, questions received after June 20, may be answered at the meeting. The individual, group or company submitting a question(s) does not have to be present for the question(s) to be answered. A consolidated list of the questions submitted by June 20, 2002, and the issues to be discussed will be posted on NHTSA's web site (
Questions for the July 18, NHTSA Rulemaking Status Meeting, relating to the agency's vehicle regulatory program, should be submitted to Delia Lopez, NPS-01, National Highway Traffic Safety Administration, Room 5401, 400 Seventh Street, SW., Washington, DC 20590, Fax Number 202-366-4329, e-mail
Delia Lopez, (202) 366-1810.
NHTSA holds regular public meetings to answer questions from the public and the regulated industries regarding the agency's vehicle regulatory program. Questions on aspects of the agency's
Sample format:
NHTSA will provide auxiliary aids to participants as necessary. Any person desiring assistance of “auxiliary aids” (e.g., sign-language interpreter, telecommunications devices for deaf persons (TDDs), readers, taped texts, brailled materials, or large print materials and/or a magnifying device), please contact Delia Lopez on (202) 366-1810, by COB Monday, July 15, 2002.
Century Products, a Division of Graco Children's Products, Inc. (“Century Products” and “Graco”), of Macedonia, Ohio, has determined that as many as 185,175 child restraints may fail to comply with 49 CFR 571.213, Federal Motor Vehicle Safety Standard (FMVSS) No. 213, “Child Restraint Systems,” and has filed appropriate reports pursuant to 49 CFR part 573, “Defects and Noncompliance Reports.” Century Products has also applied to be exempted from the notification and remedy requirements of 49 U.S.C. Chapter 301—“Motor Vehicle Safety” on the basis that the noncompliance is inconsequential to safety.
This notice of receipt of an application is published under 49 U.S.C. 30118 and 30120, and does not represent any agency decision or other exercise of judgement concerning the merits of the application.
FMVSS No. 213, Paragraph S5.1.1, states that when a child restraint system is tested in accordance with S6.1, it shall “exhibit no complete separation of any load bearing structural element and no partial separation exposing either surfaces with a radius of less than 1/4 inch or surfaces with protrusions greater than 3/8 inch above the immediate adjacent surrounding contactable surface of any structural element of the system.”
In its part 573 Defect and Noncompliance Report filed with the agency on December 11, 2001, Century Products states “On December 5, 2001, Century Products * * * decided that a noncompliance with Federal Motor Vehicle Safety Standard No. 213 exists in * * * certain * * * “Celestia” model infant car seats manufactured by Century Products * * * ” The Celestia infant seat is sold with a detachable base that may be used to permit a fixed installation into the vehicle, allowing the child seat to be taken in and out of the vehicle without having to do a new installation each time. The Celestia infant seat can also be used without the detachable base. Century Products has identified 185,175 Celestia infant car seats manufactured between January 1, 2000 and December 6, 2001 that may contain this noncompliance. In its Application for Decision of Inconsequential Noncompliance, Century Products states that it:
In its part 573 Report, Century Products states that:
Graco conducted a dynamic crash test audit of its Celestia infant car seats on December 4, 2001. Graco tested (ten) 10 Celestia infant car seats without the base, randomly taken from inventory. Four (4) of the ten (10) units exhibited wall separation and the presence of a void at the initiation point of the separation. As a result of this audit testing, Graco determined that a noncompliance existed.
Century Products believes that the FMVSS No. 213 noncompliance described above is inconsequential to motor vehicle safety. Century Products supports its application for inconsequential noncompliance with the following:
The risk of injury resulting from the wall separation during the dynamic crash test is inconsequential for several reasons. First, the shell wall separation does not affect, increase, or adversely influence the seat back angle. Thus, the restraint systems comply with FMVSS 213 S5.1.4, which provides that “[w]hen a rear-facing child restraint system is tested in accordance with S6.1, the angle between the system's back support surface for the child and the vertical shall not exceed 70 degrees.”
Second, all portions of the test dummy's torso were retained within the system and all other requirements regarding target points on either side of the dummy's head comply with FMVSS 213 S5.1.3.2.
Third, the infant shell remained securely attached to the lap belt during testing. The separation did not contribute to any degradation in the ability of the vehicle belt to retain the infant seat in its original position.
Fourth, the shell wall separation did not create an opening that contributes to the pinching, shearing, or scissoring of fingers, toes, or limbs or any other body part of either the occupant or an adjacent child seated next to the infant seat. The seat pad also acts as a mechanism to keep the occupant from contacting the separated area.
Fifth, the shell wall separation occurs at relatively high energy levels, with the separation occurring late in the application of energy of the crash test (as revealed by Century Products' review of the flexing of the infant shell wall). Few motor vehicle accidents occur at the maximum energy levels of the dynamic crash test. The possibility of a wall separation occurring in the field therefore is remote.
Sixth, the shell wall separation occurs only in a high stress area on the shell when the shell is used
Seventh, in the approximately 18 months that the infant shell has been in use in the subject products, there have been no reports of any incidents or complaints regarding the wall separation on the shell.
Eighth, product owners are advised in the accompanying literature that the seat should be discarded following a crash. In addition, it is a well-known industry practice to discontinue using a child restraint after it has experienced a crash. Thus, there is little risk
Based on the above, Century Products believes that a child subjected to a crash will be fully protected as required by FMVSS 213. Under the circumstances as set forth above, Century Products believes that the noncompliance is inconsequential as it relates to motor vehicle safety. Accordingly, Century Products respectfully requests that it be exempt from the notice and remedy procedures of the Safety Act.
Interested persons are invited to submit written data, views, and arguments on the applications of Century Products described above. Comments should refer to the docket number and be submitted to: U.S. Department of Transportation Docket Management, Room PL-401, 400 Seventh Street, SW, Washington, DC 20590. It is requested, but not required, that two copies be submitted.
All comments received before the close of business on the closing date indicated below will be considered. The application and supporting materials, and all comments received after the closing date, will also be filed and will be considered to the extent possible. When the application is granted or denied, the notice will be published in the
Krystal Koach, Inc., (Krystal), a California Corporation, dba Krystal Enterprises, has determined that 1,725 Krystal buses produced between June 1996 and November 27, 2001, do not meet the labeling requirements of paragraph S5.3 of Federal Motor Vehicle Safety Standard (FMVSS) No. 120, “Tire Selection and Rims for Motor Vehicles Other than Passenger Cars.” Pursuant to 49 U.S.C. 30118(d) and 30120(h), Krystal has petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety and has filed an appropriate report pursuant to 49 CFR part 573, “Defect and Noncompliance Reports.”
Notice of receipt of the application was published, with a 30-day comment period, on February 19, 2002, in the
Paragraph S5.3 of FMVSS No. 120 states that each vehicle shall show the information on tires and rims specified in S5.3.1 and S5.3.2, respectively, either on the vehicle certification label required by 49 CFR part 567, or on a tire information label, in both English and metric units. The standard also shows an example of the prescribed format.
Paragraph S5.3 states that each vehicle shall show the appropriate weight rating and tire information in metric and English units. This information must appear either on the certification label or a tire information label, lettered in block capitals and numerals not less than 2.4 millimeters high, and in the prescribed format.
The certification label affixed to Krystal's buses failed to comply with S5.3 because of the omission of metric measurements, and Krystal did not separately provide the metric measurements on another label, the alternative allowed by FMVSS No. 120 (the use of metric measurements is required by FMVSS No. 120, pursuant to Federal Motor Vehicle Safety Standards: Metric Conversion, 60 FR 13639, published on March 14, 1995, and effective on March 14, 1996).
Krystal supports its application for inconsequential noncompliance with the following statements:
(1) The correct information is shown on the certification label in English units;
(2) Krystal has not received any complaints or inquiries concerning a lack of a Metric equivalent of the subject information on the label;
(3) Krystal is not aware of any safety related incidents related to this noncompliance;
(4) All Krystal buses were sold in countries that predominantly use the English system of units. In fact, Krystal buses were only sold in the U.S. and Canada.
The purpose of labeling requirements in S5.3, Label information, of FMVSS No. 120 is to provide safe operation of vehicles by ensuring that those vehicles are equipped with tires of appropriate size and load rating, and rims of appropriate size and type designation. Section 5164 of the Omnibus Trade and Competitiveness Act (Pub. L. 100-418) makes it the United States policy that the metric system of measurement is the preferred system of weights and measures for U.S. trade and commerce. On March 14, 1995, NHTSA published in the
Based on the agency's telephone discussions with the petitioner, Krystal management has extensively reviewed the processes, the causes of these noncompliances have been isolated, and changes in the processes have been instituted to prevent any future occurrences. The noncompliance is limited to the buses addressed in this notice.
The omission of the metric measurements from Krystal's certification label is unlikely to have any affect on motor vehicle safety. The agency agrees with Krystal that the present label on these buses is likely to achieve the safety purpose of the required information. First, all the correct English unit information required by FMVSS No. 120 is provided on the certification label. Second, the information contained on the label is of the correct size. Third, the information contained on the label is in the prescribed format.
In consideration of the foregoing, NHTSA has decided that the applicant has met its burden of persuasion that the noncompliance it describes is inconsequential to motor vehicle safety. Accordingly, Krystal's application is hereby granted, and the applicant is exempted from the obligation of providing notification of, and a remedy for, the noncompliance.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the petition of Ford Motor Company (Ford) for an exemption of a high-theft line, the Lincoln Town Car, from the parts-marking requirements of the Federal Motor Vehicle Theft Prevention Standard. This petition is granted because the agency has determined that the antitheft device to be placed on the line as standard equipment is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard.
The exemption granted by this notice is effective beginning with model year (MY) 2003.
Ms. Rosalind Proctor, Office of Planning and Consumer Programs, NHTSA, 400 Seventh Street, SW., Washington DC 20590. Ms. Proctor's telephone number is (202) 366-0846. Her fax number is (202) 493-2290.
In a petition dated January 25, 2002, Ford requested an exemption from the parts marking requirements of 49 CFR part 541, Federal Motor Vehicle Theft Prevention Standard, for the Lincoln Town Car vehicle line beginning in MY 2003. The petition was filed pursuant to 49 CFR part 543, Exemption from Vehicle Theft Prevention Standard, based on the installation of an antitheft device as standard equipment for the entire line. Based on the evidence submitted by Ford, the agency believes that the antitheft device for the Ford Lincoln Town Car vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard (49 CFR part 541).
Section 331066(b)(2)(D) of Title 49, United States Code, authorized the Secretary of Transportation to grant an exemption from the parts-marking requirements for not more than one additional line of a manufacturer for MYs 1997-2000. However, it does not address the contingency of what to do after model year 2000 in the absence of a decision under Section 33103(d). 49 U.S.C. 33103(d)(3) states that the number of lines for which the agency can grant an exemption is to be decided after the Attorney General completes a review of the effectiveness of antitheft devices and finds that antitheft devices are an effective substitute for parts-marking. The Attorney General has not yet made a finding and has not decided the number of lines, if any, for which the agency will be authorized to grant an exemption. Upon consultation with the Department of Justice, we determined that the appropriate reading of Section 33103(d) is that NHTSA may continue to grant parts-marking exemptions for not more than one additional model line each year, as specified for model years 1997-2000 by 49 U.S.C. 33106(b)(2)(C). This is the level contemplated by the Act for the period before the Attorney General's decision. The final decision on whether to continue granting exemptions will be made by the Attorney General at the conclusion of the review pursuant to Section 330103(d)(3).
Ford's submittal is considered a complete petition, as required by 49 CFR 543.7, in that it meets the general requirements contained in § 543.5 and the specific content requirements of § 543.6. Ford requested confidential treatment for information and attachments in support of its petition. In a letter to the manufacturer dated March 14, 2002, the agency granted Ford's request for confidential treatment of its petition.
In its petition, Ford provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the line. Ford will install its antitheft device, the SecuriLock Passive Anti-Theft Electronic Engine Immobilizer System (SecuriLock) as standard equipment on the MY 2003 Lincoln Town Car. The system has been voluntarily installed as standard equipment on its Lincoln Town Car line since MY 1998.
In order to ensure the reliability and durability of the device, Ford conducted tests, based on its own specified standards. Ford provided a detailed list of the tests conducted and stated its belief that the device is reliable and durable since it complied with Ford's specified requirements for each test. The environmental and functional tests conducted were for thermal shock, high temperature exposure, low-temperature exposure, powered/thermal cycle, temperature/humidity cycling, constant humidity, end-of-line, functional, random vibration, tri-temperature parametric, bench drop, transmit current, lead/lock strength/integrity, output frequency, resistance to solvents, output field strength, dust, and electromagnetic compatibility.
The Ford SecuriLock is a transponder-based electronic immobilizer system. The device is activated when the driver/operator turns off the engine by using the properly coded ignition key. When the ignition key is turned to the start position, the transponder (located in the head of the key) transmits a code to the powertrain's electronic control module (PCM). The vehicle's engine can only be started if the transponder code matches the code previously 2 programmed into the powertrain's electronic control module. If the code does not match, the engine will be disabled.
Ford stated that there are four quadrillion different codes and each transponder is hard-coded with a unique code at the time of vehicle assembly. Additionally, Ford stated that communication between the SecuriLock transponder and the powertrain's electronic control module is encrypted, making key duplication nearly impossible.
Ford stated that its SecuriLock system incorporates a theft indicator using a light-emitting diode (LED) that provides a visual indicator to the driver/operator as to the “set” and “unset” condition of the device. When the ignition is initially turned to the “ON” position, a 3-second continuous LED indicates that the device is “unset.” When the ignition is turned to “OFF,” a flashing LED indicates the device is “set” and provides visual information that the vehicle is protected by the SecuriLock system. Ford states that the integration of the setting/unsetting device (transponder) into the ignition key assures activation of the device.
Ford believes that its new device is reliable and durable because its does not have any moving parts, nor does it require a separate battery in the key. If the correct code is not transmitted to the electronic control module (accomplished only by having the correct key), there is no way to mechanically override the system and start the vehicle. Furthermore, Ford stated that with the sophisticated design and operation of the electronic engine immobilizer system, conventional theft methods are ineffective (i.e., hot-wiring or attacking the ignition-lock cylinder). Ford reemphasized that any attempt to slam-pull the ignition-lock cylinder will have no effect on a thief's ability to start the vehicle.
Ford stated that the effectiveness of its SecuriLock device is best reflected in the reduction of the theft rates for its Mustang GT and Cobra models from MY 1995 to 1996. The SecuriLock antitheft device was voluntarily installed on all Mustang GT and Cobra models, and the Taurus LX and SHO models as standard equipment in MY 1996. In MY 1997, the SecuriLock system was installed on the entire Mustang vehicle line as standard equipment. Ford notes that a comparison of the National Crime Information Center's (NCIC) calendar year (CY)1995 theft data for MY 1995 Mustang GT and Cobra vehicles without an immobilizer device installed with MY 1997 data for Mustang GT and
As part of its submission, Ford also provided a Highway Loss Data Institute (HLDI) theft loss bulletin, Vol. 15, No. 1, September 1997, which evaluated 1996 Ford Mustang and Taurus models fitted with the SecuriLock device and corresponding 1995 models without the SecuriLock device. The results as reported by HLDI indicated a reduction in overall theft losses by approximately 50% for both Mustang and Taurus models.
Additionally, Ford stated that its SecuriLock device has been demonstrated to various insurance companies, and as a result AAA Michigan and State Farm now give an antitheft discount for all Ford vehicles equipped with the SecuriLock device.
Ford's proposed device, as well as other comparable devices that have received full exemptions from the parts-marking requirements, lacks an audible or visible alarm. Therefore, these devices cannot perform one of the functions listed in 49 CFR part 542.6(a)(3), that is, to call attention to unauthorized attempts to enter or move the vehicle. However, theft data have indicated a decline in theft rates for vehicle lines that have been equipped with antitheft devices similar to that which Ford proposes. In these instances, the agency has concluded that the lack of a visual or audio alarm has not prevented these antitheft devices from being effective protection against theft.
On the basis of comparison, Ford has concluded that the antitheft device proposed for its vehicle line is no less effective than those devices in the lines for which NHTSA has granted full exemptions from the parts-marking requirements.
Based on the evidence submitted by Ford, the agency believes that the antitheft device for the Lincoln Town Car vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard (49 CFR part 541).
The agency believes that the device will provide four of the five types of performance listed in 49 CFR 543.6(a)(3): promoting activation; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
As required by 49 U.S.C. 33106 and 49 CFR 543.6(a)(4) and (5), the agency finds that Ford has provided adequate reasons for its belief that the antitheft device will reduce and deter theft. This conclusion is based on the information Ford provided about its antitheft device.
For the foregoing reasons, the agency hereby grants in full Ford Motor Company's petition for an exemption for the MY 2003 Lincoln Town Car vehicle line from the parts-marking requirements of 49 CFR part 541.
If Ford decides not to use the exemption for this line, it must formally notify the agency, and, thereafter, must fully mark the line as required by 49 CFR 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if Ford wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Section 543.7(d) states that a Part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, § 543.9(c)(2) provides for the submission of petitions to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in that exemption. The agency wishes to minimize the administrative burden that § 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be de minimis. Therefore, NHTSA suggests that if the manufacturer contemplates making any changes, the effects of which might be characterized as de minimis, it should consult the agency before preparing and submitting a petition to modify.
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50.
National Highway Traffic Safety Administration, Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the petition of Mazda Motor Corporation, (Mazda) for an exemption of a high-theft line, the Mazda 6, from the parts-marking requirements of the Federal motor vehicle theft prevention standard. The Mazda 6 vehicle line will replace the current 626 line. This petition is granted because the agency has determined that the antitheft device to be placed on the line as standard equipment is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard. Mazda requested confidential treatment for some of the information submitted in support of its petition. In a letter to Mazda dated January 24, 2002 and April 4, 2002, the agency addressed its request for confidential treatment.
The exemption granted by this notice is effective beginning with model year (MY) 2003.
Ms. Rosalind Proctor, Office of Planning and Consumer Programs, NHTSA, 400 Seventh Street, SW., Washington DC 20590. Ms. Proctor's phone number is (202) 366-0846. Her fax number is (202) 493-2290.
In a petition dated December 27, 2001, Mazda Motor Corporation (Mazda), requested exemption from the parts-marking requirements of the theft prevention standard (49 CFR part 541) for the Mazda 6 vehicle line beginning with MY 2003. The petition requested an exemption from parts-marking pursuant to 49 CFR part 543, Exemption from Vehicle Theft Prevention Standard, based on the installation of an antitheft device as standard equipment for the entire vehicle line.
Section 33106(b)(2)(D) of Title 49, United States Code, authorized the Secretary of Transportation to grant an exemption from the parts-marking requirements for not more than one additional line of a manufacturer for MYs 1997—2000. However, it does not address the contingency of what to do after model year 2000 in the absence of
Mazda's submission is considered a complete petition as required by 49 CFR 543.7, in that it meets the general requirements contained in § 543.5 and the specific content requirements of § 543.6. Mazda requested confidential treatment for some of the information submitted in support of its petition. In a letter to Mazda dated January 24, 2002, the agency addressed its request for confidential treatment.
In its petition, Mazda provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the new vehicle line. The antitheft device is a transponder-based electronic immobilizer system. Mazda will install its antitheft device, a transponder based electronic engine immobilizer antitheft system as standard equipment on its 6 carline beginning with MY 2003.
In order to ensure the reliability and durability of the device, Mazda conducted tests based on its own specified standards. Mazda provided a detailed list of the tests conducted and stated its belief that the device is reliable and durable since it has complied with Mazda's specified requirements for each test.
Mazda's antitheft device is activated when the driver/operator turns off the engine using the properly coded ignition key. When the ignition key is turned to the start position, the transponder (located in the head of the key) transmits a code to the powertrain's electronic control module. The vehicle's engine can only be started if the transponder code matches the code previously programmed into the powertrain's electronic control module. If the code does not match, the engine will be disabled. Mazda stated that there are approximately 18 quintillion different codes and at the time of manufacture, each transponder is hard-coded with a unique code. Additionally, Mazda stated that encrypted communications exist between the immobilizer system control function and the powertrain's electronic control module.
Mazda also stated that its immobilizer system incorporates a light-emitting diode (LED) that provides information to the driver/operator as to the “set” and “unset” condition of the device. When the ignition is initially turned to the “ON” position, a 3-second continuous LED indicates the proper “unset” state of the device. When the ignition is turned to “OFF”, a flashing LED indicates the “set” state of the device and provides visual information that the vehicle is protected by the immobilizer system. Mazda states that the integration of the setting/unsetting device (transponder) into the ignition key prevents any inadvertent activation of the device.
Mazda believes that it would be very difficult for a thief to defeat this type of electronic immobilizer system. Mazda believes that its new device is reliable and durable because it does not have any moving parts, nor does it require a separate battery in the key. If the correct code is not transmitted to the electronic control module (accomplished only by having the correct key), there is no way to mechanically override the system and start the vehicle. Furthermore, Mazda stated that drive-away thefts are virtually eliminated with the sophisticated design and operation of the electronic engine immobilizer system which makes conventional theft methods (i.e., hot-wiring or attacking the ignition-lock cylinder) ineffective. Mazda reemphasized that any attempt to slam-pull the ignition-lock cylinder will have no effect on the thief's ability to start the vehicle.
Mazda reported that in MY 1996, the proposed system was installed on certain U.S. Ford vehicles as standard equipment (i.e. on all Ford Mustang GT and Cobra models, Ford Taurus LX, SHO and Sable LS models). In MY 1997, the immobilizer system was installed on the Ford Mustang vehicle line as standard equipment. When comparing 1995 model year Mustang vehicle thefts (without immobilizer), with MY 1997 Mustang vehicle thefts (with immobilizer), data from the National Insurance Crime Bureau showed a 70% reduction in theft. (Actual NCIC reported thefts were 500 for MY 1995 Mustang, and 149 thefts for MY 1997 Mustang.)
Mazda's proposed device, as well as other comparable devices that have received full exemptions from the parts-marking requirements, lack an audible or visible alarm. Therefore, these devices cannot perform one of the functions listed in 49 CFR 542.6(a)(3), that is, to call attention to unauthorized attempts to enter or move the vehicle. However, theft data have indicated a decline in theft rates for vehicle lines that have been equipped with devices similar to that which Mazda proposes. In these instances, the agency has concluded that the lack of a visual or audio alarm has not prevented these antitheft devices from being effective protection against theft.
On the basis of this comparison, Mazda has concluded that the proposed antitheft device is no less effective than those devices installed on lines for which NHTSA has already granted full exemption from the parts-marking requirements.
Based on the evidence submitted by Mazda, the agency believes that the antitheft device for the Mazda vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR part 541).
The agency concludes that the device will provide four of the five types of performance listed in § 543.6(a)(3): Promoting activation; attracting attention to the efforts of unauthorized persons; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
As required by 49 U.S.C. 33106 and 49 CFR 543.6(a)(4) and (5), the agency finds that Mazda has provided adequate reasons for its belief that the antitheft device will reduce and deter theft. This conclusion is based on the information Mazda provided about its device. This confidential information included a description of reliability and functional tests conducted by Mazda for the antitheft device and its components.
For the foregoing reasons, the agency hereby grants in full Mazda's petition for exemption for its vehicle line from the parts-marking requirements of 49 CFR Part 541.
If Mazda decides not to use the exemption for this line, it should formally notify the agency. If such a decision is made, the line must be fully marked according to the requirements
NHTSA notes that if Mazda wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Section 543.7(d) states that a part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, § 543.9(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in that exemption.”
The agency wishes to minimize the administrative burden that § 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting Part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be de minimis. Therefore, NHTSA suggests that if the manufacturer contemplates making any changes the effects of which might be characterized as de minimis, it should consult the agency before preparing and submitting a petition to modify.
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50.
Research and Special Programs Administration (RSPA), DOT.
Decision on petition for reconsideration of an administrative determination of preemption.
The County's petition for reconsideration is denied, and RSPA affirms its December 27, 2000 determination that Federal hazardous materials transportation law preempts the County's Ordinance No. 1999-53 on the following subjects to the extent that, as applied and enforced, they relate to transportation in commerce: certain hazardous materials definitions and the requirements that rely on those definitions; written notification of a hazardous materials release; retention of shipping papers; licensing fees for hazardous waste transporters; and monthly reports of transportation activity.
Donna L. O'Berry, Office of the Chief Counsel, Research and Special Programs Administration, U.S. Department of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).
In April 1998, the Association of Waste Hazardous Materials Transporters (AWHMT) applied for a determination that Federal hazardous material transportation law preempts 10 specific provisions of Chapter 27 of the Broward County Ordinance (Ordinance) that defined hazardous materials and set requirements for their transportation to and from points within the County. These provisions were contained in Article XII (entitled “Hazardous Material”) of Chapter 27.
On August 6, 1998, RSPA published in the
On September 28, 1999, the Broward County Commissioners amended Chapter 27 by adopting Ordinance No. 1999-53 (the revised Ordinance). Some of the regulations originally challenged in AWHMT's application were modified and moved by the County to new Article XVII (entitled “Waste Transporters”); some were deleted from the revised Ordinance; and others remained where they were in the previous Ordinance.
Because the County had substantially modified the Ordinance, RSPA asked AWHMT to supplement its application to reflect the revisions to the Ordinance, and invited interested parties to comment on the County's revised Ordinance. 64 FR 59231. (Nov. 2, 1999). On behalf of AWHMT, the American Trucking Associations (herein referred to as ATA/AWHMT) submitted the revised application. In addition, IME and AAR submitted comments. On March 22, 2000, the County submitted its comments to the revised Ordinance. On May 5, 2000, ATA/AWHMT submitted rebuttal comments to the County's comments.
As a result of the County's changes to the revised Ordinance, ATA/AWHMT withdrew its challenge to four of the County's requirements. ATA/AWHMT continued to challenge the County's definitions of certain hazardous materials in §§ 27-352 and 27-436, and the County's requirements for release reporting in §§ 27-355(a)(1) and 27-439(f)(1), packaging standards in § 27-439(e)(2), fees in § 439(a), monthly reporting in § 27-439(g), and vehicle inspection in § 27-439(e)(3). In addition, AAR continued to challenge the County's shipping paper requirements in § 27-439(g)(1), and vehicle marking requirements in § 27-439(e)(4). RSPA's December 27, 2000 decision addressed only the challenges to the revised Ordinance.
In its decision, RSPA determined that Federal hazardous material transportation law preempts County requirements pertaining to certain hazardous material definitions, all requirements that rely on those definitions, written notification of a hazardous material release, shipping paper retention for certain hazardous materials transporters, licensing fees for hazardous waste transporters and monthly transportation activity reporting. 65 FR 81950-60. RSPA stated that these requirements were preempted only to the extent that they related to transportation in commerce or differed from the HMR or other Federal requirements.
In Part II of its decision, RSPA discussed the standard for making preemption determinations under the Federal hazardous materials transportation law. 65 FR 81951-52. As RSPA explained, unless there is specific authority in another Federal law or DOT grants a waiver, a local (or other non-Federal) requirement is preempted if:
In addition, a State, political subdivision, or Indian tribe may impose a fee related to transporting hazardous material “only if the fee is fair and used for a purpose relating to transporting hazardous material, including enforcement and planning, developing, and maintaining a capability for emergency response.” 49 U.S.C. 5125(g)(1).
These preemption provisions stem from congressional findings that State and local laws which vary from Federal hazardous material transportation requirements can create “the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting * * * regulatory requirements,” and that safety is advanced by “consistency in laws and regulations governing the transportation of hazardous materials.” Pub. L. 101-615 §§ 2(3) and 2(4), 104 Stat. 3244.
Within the 20-day time period provided in 49 CFR 107.211(a), the County filed a petition for reconsideration and stay of PD-18(R). The County challenged the preemption of:
• Revised Ordinances 27-325 and 27-436 pertaining to certain hazardous materials definitions,
• Revised Ordinances 27-355(a)(1) and 27-439(f)(1) pertaining to incident release reporting,
• Revised Ordinance 27-356(b)(4)d.1 pertaining to shipping paper retention requirements,
• Revised Ordinance 27-439(b) pertaining to fees, and
• Revised Ordinance 27-439(g)(2) pertaining to monthly reporting requirements.
The County certified that it had mailed a copy of its petition to all organizations and individuals that had submitted comments to the original application, with the exception of one individual whose address was incomplete. IME submitted comments to the County's petition for reconsideration and stay.
In its petition for reconsideration, the County argues that Article XII, Hazardous Materials, applies exclusively to “the generation, use, storage, handling, processing, manufacturing and disposal of hazardous materials.” The County explains that the Article does not seek to regulate the transportation of hazardous materials in any fashion, but rather gives deference to Federal law. The County further contends that Article XII, Waste Transporters, has been subdivided and is the only area in which the County intends to regulate hazardous materials transportation in or incidental to commerce. The County argues that it has every right to regulate certain hazardous materials-related activities and facilities within the County's borders without Federal Government interference. Thus, the County concludes that RSPA has improperly sought to preempt a non-Federal regulation that does not conflict with Federal regulations. For the reasons discussed below, RSPA finds that portions of Article XII do apply to transportation in commerce, including storage incidental to transportation, and to that extent are preempted.
The County challenges RSPA's determination that its definitions of hazardous materials, combustible liquid, flammable liquid, biomedical waste discarded hazardous materials and sludge are preempted under 49 U.S.C. 5125(b)(1)(A). 65 FR 81952-54. Following is a summary of the County's arguments concerning each preempted definition.
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(1) The Department of Planning and Environmental Protection (DPEP)
The County further states that Article XVII, which is titled “Waste Transporters,” has been properly subdivided and is the only area in which the County intends to regulate hazardous materials transportation. The County contends that it has the right to regulate hazardous material facilities, construction overlying contamination, storage and use of hazardous material in wellfield zones, and abandonment or improper disposal of hazardous materials that occurs within Broward County without Federal Government interference. Thus, the County concludes that RSPA has improperly sought to preempt Article XII, which does not conflict with Federal regulations.
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In its decision, RSPA, under 49 U.S.C. 5125(b)(1)(A), preempted the County's definitions of hazardous materials, combustible liquid, flammable liquid, biomedical waste, discarded hazardous materials, and sludge because these definitions were not “substantively the same as” their counterparts in the HMR or did not have counterparts in the HMR. 65 FR 81952-53. Section 5125(b)(1)(A) preempts non-Federal requirement on the “designation, description, and classification of hazardous material” that are not “substantively the same as” the HMR. However, RSPA stated that these definitions were only preempted to the extent that they related to transportation in commerce. 65 FR 81952-53.
As RSPA stated in its decision, it appears from a plain reading of Article XII and Article XVII of the County's revised Ordinance that the County uses the definitions in defining the applicability of its regulation of transportation in commerce. 65 FR 81953. RSPA found that
Article XII regulates the “generation, use, storage, handling, processing, manufacturing, and disposal of hazardous materials.” Revised Ordinance 27-351. The * * * DPEP is authorize to license, evaluate, review and administer all hazardous materials activities * * * performed in Broward County.
If, however, that is not the case for a particular definition, then RSPA's preemption decision does not apply to that definition. Therefore, if the County's definitions in § 27-352 of hazardous material, combustible liquid, flammable liquid, and discarded hazardous materials, as applied and enforced by the County, do not relate to transportation in commerce or storage incidental to transportation, the preemption provisions in 49 U.S.C. 5125(b)(1)(A) do not apply.
Concerning the definitions of biomedical waste and discarded hazardous materials in §§ 27-352 and 27-436, RSPA's determination that these definitions are preempted still applies.
Concerning the definition of sludge in § 27-436, RSPA does not agree with the County that it does not have the authority to preempt this definition as it is applied and enforced. It appears that the County is using the definition of sludge to regulate a material as a hazardous material. The definition of sludge is contained in Article XVII, Waste Transporters, which, as the County states in its comments, is the section where the County seeks to regulate the transportation of hazardous materials in commerce. As previously mentioned, § 27-435 of Article XVII, which deals with the applicability of the article, states “[t]his article applies to all persons conducting activities within geographical boundaries of Broward County, which transport discarded hazardous material, sludge, or biomedical waste to, from, and within Broward County.” Based on this information, the County appears to be attempting to use the definition of sludge for the purpose of regulating a hazardous material and, therefore, continues to find that the definition is preempted under 49 U.S.C. 5125(b)(1)(A). However, as stated in the previous determination, this definition and the regulations that apply this definition are preempted only to the extent that they relate to transportation in commerce and storage incidental to transportation in commerce. 65 FR 81953-54.
The County can, however, define sludge as it deems appropriate for State purposes, such as disposal, and RSPA's preemption of the definition has no effect on non-transportation-related functions. The County is correct that the HMR do not contain a specific definition of “solid waste.” Solid waste and hazardous waste are defined in the Environmental Protection Agency's (EPA's) Resource Conservation and Recovery Act (RCRA) regulations at 40 CFR 261.2 and 261.3, respectively. We do not address whether the County's definition of sludge conflicts with EPA's definitions for solid waste or hazardous waste.
The County maintains its position that Article XII regulates releases that do not involve transportation, including storage incidental to transportation in commerce. The County states that Article XII has been consistently enforced in that manner and, therefore, should not be preempted. The County states that it has agreed to modify section 27-439(f)(1) and provides sample language of how it intends to revise the section. The County anticipates that it will take approximately six months to complete the revisions because of the required notice and public hearing requirements in its local law.
In its decision, RSPA addressed two requirements in the County's revised Ordinance that dealt with release reporting—§ 27-355(a)(1) in Article XII and § 27-439(f)(1) in Article XVII. 65 FR 81954-81955. RSPA found that the written notification requirement contained in § 27-355(a)(1), and the requirement in § 27-439(f)(1) to report releases in accordance with § 27-355(a)(1), were preempted to the extent that they related to the transportation of hazardous materials in commerce, including loading, unloading and
As mentioned above, the County argues that Article XII [which contains § 27-355(a)(1)] regulates releases that do not involve transportation, including storage incidental to transportation in commerce, and has consistently been enforced in that manner. The County made the same argument in its comments to the initial proceeding. At that time, RSPA determined that it was not apparent from the face of the revised Ordinance whether Article XII could be construed as applying to hazardous materials transportation or storage incidental to transportation. 65 FR 81954. Thus, RSPA stated that its decision to preempt § 27-355(a)(1) was limited to the extent that § 27-355(a)(1) related to transportation in commerce, including storage incidental to commerce.
Concerning the proposed revisions to § 27-439(f)(1), it appears from the County's comments that the modification has not been made and likely will not be made for some time. Thus, RSPA's determination that this section is preempted as it pertains to written incident release reporting is affirmed.
The County's only comment is that it does not regulate intermediate rail transporters. IME contends that it is unclear what the County is asking of RSPA. IME points out that RSPA preempted section 27-439(g)(1) as it relates to intermediate rail transporters and that if the County does not regulate intermediate rail transporters RSPA's decision has no bearing on that part of the revised Ordinance.
In its decision, RSPA addressed two sections of the revised Ordinance that dealt with shipping paper retention: § 27-356(b)(4)d.1 in Article XII and § 27-439(g)(1) in Article XVII. 65 FR 81956. RSPA determined that § 27-356(b)(4)d.1 was preempted under the “substantively the same as” test to the extent that the requirement differed from the HMR and EPA's requirements for hazardous waste manifest retention because (1) it requires a five-year retention period for waste manifests, bills of lading or other equivalent manifesting, rather than three years as required under the HMR and by the EPA, and (2) it applies to intermediate rail transporters, which were exempt from this type of record retention under the HMR.
Section 27-435, which defines the applicability of Article XVII, states that the “article applies to all persons conducting activities within the geographical boundaries of Broward County, which transport discarded hazardous materials, sludge, or biomedical waste to, from, and within Broward County.” It is not apparent from a plain reading of this section that it excludes intermediate rail transporters. However, if the County does not regulate intermediate rail transporters, as it asserts, then RSPA's determination that §§ 27-356(b)(4)d.1 and 27-439(g)(1) are preempted as applied to intermediate rail transporters is moot.
As mentioned above, however, RSPA also preempted § 27-356(b)(4)d.1 under the “substantively the same as” test because it imposed a longer record retention period for hazardous waste manifests, bills of lading and other equivalent manifesting.
Thus, § 27-356(b)(4)d.1 remains preempted under the “substantively the same as” test to the extent that the requirement differs from the HMR (and EPA) requirements for hazardous waste manifest retention.
The County states that it has begun revising its transporter license fee structure, which will be based upon use of service. The County explains that all license fees that are colleted are deposited into the General Fund of Broward County. It states that these funds are then budgeted for use related to transporting hazardous materials, including enforcement, planning, and maintaining a capability for emergency response. The County further explains that the County's DPEP maintains a trained staff in its Emergency Response section, each with on-call capabilities. The County estimates that it will take approximately six months to implement the new fee structure because of its notice and public hearing requirements.
RSPA preempted the County's existing fee structure contained in § 27-439(a) because it failed the fairness and “used for” tests, as well as the “obstacle” test. 65 FR 81958-59. RSPA determined that the County's fee for obtaining a waste transport license was the same for every transporter that transported discarded hazardous materials, sludge or biomedical waste “to, from and within” the County. 65 FR 81959. RSPA determined that the County's fee structure was not fair under the standards set forth in 49 U.S.C. 5125(g)(1) because it was not based on some fair approximation of use of facilities and because it discriminated against interstate commerce.
As mentioned above, the County indicates that it has begun modifying its waste transporter fee structure and that the funds are budgeted for items that appear to meet the requirements of 49 U.S.C. 5125(g)(1). To date, however, the County has not submitted its revised regulation and may not be able to do so for several months. Therefore, RSPA reaffirms it decision that the County's fee requirement contained in § 27-439(a) is preempted under 49 U.S.C. 5125(g)(1) for the reasons stated above. Once the County has competed its revision to that section of the
The County states that it will revise its reporting requirements by deleting § 27-439(g)(2) in the upcoming version of Chapter 27. In its decision, RSPA preempted this section under the “obstacle” test because it required information in excess of the Federal reporting requirements. 65 FR 81959-60. If the County does remove this section in an upcoming revision of the County Code, then RSPA's preemption determination as to this particular section will become moot. Until that time, however, the section remains preempted.
The County's petition for reconsideration and stay of determination is denied. RSPA finds that Federal hazardous materials preemption law preempts:
• Portions of revised §§ 27-352 and 27-436 containing the definitions of biomedical waste, combustible liquid, discarded hazardous materials, flammable liquid, hazardous material and sludge, to the extent that these definitions relate to transportation in commerce.
• All County hazardous materials transportation requirements that rely on these definitions.
• Portions of §§ 27-355(a)(1) and 27-439(f)(1) containing written incident release reporting requirements, to the extent that these sections pertain to transportation in commerce.
• Section 27-356(b)(4)d.1 containing shipping paper requirements, to the extent that they differ from HMR or EPA requirements for shipping paper and waste manifest retention. (Section 27-439(g)(1) is preempted only if it is applied to intermediate rail transporters.)
• Section 27-439(b) containing the fee requirements for obtaining a waste transporter license.
• Section 27-439(g)(2) containing monthly reporting requirements, to the extent that this requirement relates to transportation in commerce.
The County's request for a six-month stay to modify its existing regulations is also denied. It has been more than six months since the County submitted its request for a stay, but the County has provided no evidence that it has made the contemplated revisions to its Ordinance. Therefore, the specific sections discussed above are preempted.
In accordance with 49 CFR 107.211(d), this decision constitutes RSPA's final agency action on ATA/AWHMT's application for a determination of preemption of specific sections of Broward County, Florida's revised Ordinances. Any party to this proceeding “may bring a civil action in an appropriate district court of the United States for judicial review of [this] decision * * * not later than 60 days after the decision becomes final.” 49 U.S.C. 5125(f). This decision becomes final on the date of
New York Central Lines, LLC (NYC) and CSX Transportation, Inc. (CSXT) have filed a notice of exemption under 49 CFR 1152 Subpart F—
NYC and CSXT have certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8 (historic reports), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to these exemptions, any employee adversely affected by the discontinuance shall be protected under
A copy of any petition filed with the Board should be sent to applicants' representative: Natalie S. Rosenberg, CSX Transportation, Inc., 500 Water Street J150, Jacksonville, FL 32202.
If the verified notice contains false or misleading information, the exemption is void
NYC and CSXT have filed an environmental report which addresses the effects, if any, of the discontinuance on the environment and historic resources. SEA will issue an environmental assessment (EA) by May 24, 2002. Interested persons may obtain a copy of the EA by writing to SEA (Room 500, Surface Transportation Board, Washington, DC 20423) or by calling SEA, at (202) 565-1552. [TDD for the hearing impaired is available at 1-800-877-8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Board decisions and notices are available on our website at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Bureau of Transportation Statistics (BTS), DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Written comments should be submitted by June 17, 2002.
Bernie Stankus, Office of Airline Information, K-14, Room 4125, Bureau of Transportation Statistics, 400 Seventh Street, SW., Washington, DC 20590-0001, Telephone Number (202) 366-4387, Fax Number (202) 366-3383 or e-mail
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: BTS Desk Officer.
The Department of Transportation sets and updates the international and mainline Alaska mail rates based on carrier aircraft operating expense, traffic and operational data. Form 41 cost data, especially fuel costs, terminal expenses, and line haul expenses are used in arriving at rate levels. DOT revises the established rates based on the percentage of unit cost changes in the carriers' operations. These updating procedures have resulted in the carriers receiving rates of compensation that more closely parallel their costs of providing mail service and contribute to the carriers' economic well-being.
As a party to the Convention on International Civil Aviation, the United States is obligated to provide the International Civil Aviation Organization with financial and statistical data on operations of U.S. air carriers. Over 99 percent of the data filed with ICAO is extracted from the carriers' Form 41 reports.
DOT uses Form 41 cost data to calculate the Standard Foreign Fare Level (SFFL) for passengers and the Standard Foreign Rate Level (SFRL) for freight. Any international fare or rate set below this fare level are automatically approved. Separate passenger fare and rate levels are established for Canadian, Atlantic, Latin America, and Pacific areas. In markets where liberal bilateral or multilateral pricing agreements provide for more competitive open market pricing, such agreements may take precedence over the SFFL and SFRL.
Fitness determinations are made for both new entrants and established U.S. domestic carriers proposing a substantial change in operations. A portion of these applications consists of an operating plan for the first year (14 CFR part 204) and an associated projection of revenues and expenses. The carrier's operating costs, included in these projections, are compared against the cost data in Form 41 for a carrier or carriers with the same aircraft type and similar operating characteristics. Such a review validates the reasonableness of the carrier's operating plan.
Form 41 reports, particularly balance sheet reports and cash flow statements play a major role in the identification of vulnerable carriers. Data comparisons are made between current and past periods in order to assess the current financial position of the carrier. Financial trend lines are extended into the future to analyze the continued viability of the carrier. DOT reviews three areas of a carrier's operation: (1) The qualifications of its management team, (2) its disposition to comply with laws and regulations, and (3) its financial posture. DOT must determine whether or not a carrier has sufficient financial resources to conduct its operations without imposing undue risk on the traveling public. Moreover, once a carrier is operating, DOT is required to monitor its continuing fitness.
Senior DOT officials must be kept fully informed as to all current and developing economic issues affecting the airline industry. In preparing financial conditions reports or status reports on a particular airline, financial and traffic data are analyzed. Briefing papers may use the same information.
Under the War Air Service Program (WASP), FAA develops an official airline guide to establish air carrier boarding priorities in the event of a national emergency. The inventory of aircraft available for WASP equals the total aircraft fleet operated by certificated air carriers less the number of the largest wide-body aircraft that are allocated to the Civil Reserve Aircraft Fleet Program. Data on air carrier aircraft inventories, plus interim updates of acquisitions and retirements are used to assess the air transportation capabilities of the U.S. airline industry. This assessment is used in developing plans for emergency utilization of U.S. airline industry aircraft and resources in the event of a national emergency and/or mobilization.
DOT is using Form 41 financial data to establish benchmarks to assess the reasonableness of air carrier claims under the Stabilization Act.
Bureau of Transportation Statistics (BTS), DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Written comments should be submitted by June 17, 2002.
Bernie Stankus, Office of Airline Information, K-14, Room 4125, Bureau of Transportation Statistics, 400 Seventh Street, SW., Washington, DC 20590-0001, Telephone Number (202) 366-4387, Fax Number (202) 366-3383 or e-mail
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: BTS Desk Officer.
The Department of Transportation sets and updates the Intra-Alaska Bush mail rates based on carrier aircraft operating expense, traffic, and operational data. Form 298-C cost data, especially fuel costs, terminal expenses, and line haul expenses are used in arriving at rate levels. DOT revises the established rates based on the percentage of unit cost changes in the carriers' operations. These updating procedures have resulted in the carriers receiving rates of compensation that more closely parallel their costs of providing mail service and contribute to the carriers' economic well-being.
DOT often has to select a carrier to provide a community's essential air service. The selection criteria include historic presence in the community, reliability of service, financial stability and cost structure of the air carrier.
Fitness determinations are made for both new entrants and established U.S. domestic carriers proposing a substantial change in operations. A portion of these applications consists of an operating plan for the first year (14 CFR part 204) and an associated projection of revenues and expenses. The carrier's operating costs, included in these projections, are compared against the cost data in Form 298-C for a carrier or carriers with the same aircraft type and similar operating characteristics. Such a review validates the reasonableness of the carrier's operating plan.
The quarterly financial submissions by commuter and small certificated air carriers are used in determining each carrier's continuing fitness to operate. Section 41738 of Title 49 of the United States Code requires DOT to find all commuter and small certificated air carriers fit, willing, and able to conduct passenger service as a prerequisite to providing such service to an eligible essential air service point. In making a fitness determination, DOT reviews three areas of a carrier's operation: (1) The qualifications of its management team, (2) its disposition to comply with laws and regulations, and (3) its financial posture. DOT must determine whether or not a carrier has sufficient financial resources to conduct its operations without imposing undue risk on the traveling public. Moreover, once a carrier begins conducting flight operations, DOT is required to monitor its continuing fitness.
Senior DOT officials must be kept fully informed and advised of all current and developing economic issues affecting the airline industry. In preparing financial condition reports or status reports on a particular airline, financial and traffic data are analyzed. Briefing papers prepared for senior DOT officials may use the same information.
DOT is using financial data reported by small certificated and commuter air carriers to establish benchmarks to
Internal Revenue Service (IRS), Treasury.
Notice.
This document contains a Notice that the IRS has made available the grant application package (Publication 3319) for parties interested in applying for a Low-Income Taxpayer Clinic Grant for the 2003 grant cycle. The IRS will award up to $100,000 in matching funds to qualifying organizations.
Grant applications for the 2003 grant cycle must be received by the IRS (not postmarked) by July 1, 2002.
Send completed grant applications to: Internal Revenue Service, SPEC Hqs, Mail Stop 55 WI, Attn: Grants Administration Office, 401 W. Peachtree St. NW, Atlanta, GA 30308. Copies of the grant application package (IRS Publication 3319) can be downloaded from the IRS Internet site at:
Beverly Smith, LITC Management and Program Analyst, at 317-226-6771. (not a toll-free number)
Section 7526 of the Internal Revenue Code authorizes the IRS, subject to the availability of appropriated funds, to make grants to provide matching funds for the development, expansion, or continuation of qualified low income taxpayer clinics. Section 7526 authorizes the IRS to provide grants to qualified organizations that represent low income taxpayers in controversies with the IRS and/or inform individuals for whom English is a second language of their tax rights and responsibilities.
Applications that pass the eligibility screening process will be numerically ranked in each of the areas listed below based on the information contained in their proposed program plan. Each criterion reflects the maximum number of points that may be assigned. In assigning numerical points, the IRS will evaluate the program plan based on how it will assist in accomplishment of the IRS mission and goals and meeting the LITC statutory requirements as stated elsewhere in the application package. Organizations can receive a maximum of 100 points. If you are applying for more than one qualifying activity (i.e. representation, referral, ESL, or combination thereof) each type of program will be evaluated separately. The ranking points will be assigned as follows:
A. Quality of programs offered to assist low income taxpayers or individuals for whom English is a second language, including (Maximum 75 points)—
1. Qualifications of administrators and qualified representatives;
2. The amount of time devoted to the program by clinic staff;
3. Training clinic participants will be provided;
4. Plans for supervising clinic participants;
5. Procedures for ensuring the confidentiality of taxpayer information;
6. Publicity of clinic operations; and
7. The dates and days and hours of clinic operation.
B. Experience in sponsoring a tax clinic where individuals with tax controversies with the IRS were represented; or
Experience in sponsoring a tax clinic where individuals with tax controversies with the IRS were referred; or
Experience in providing a program to inform individuals for whom English is a second language about their rights and responsibilities. (Maximum 10 points)
C. Quality of grant administration and internal accounting procedures. (Maximum 10 points)
D. Number of low-income and ESL taxpayers in geographical area. (Maximum 5 points)
Please note that the IRS Volunteer Income Tax Assistance (VITA) Program is a separate and distinct program from the LITC grant program. Organizations currently participating in the VITA Program may be eligible to apply for a LITC grant if they meet the criteria and qualifications outlined in the LITC Grant Application Package & Guidelines (Publication 3319). Organizations that seek to operate both VITA and LITC programs must maintain separate and distinct programs to ensure proper cost allocation for LITC grant funds and adherence to both VITA and LITC program rules and regulations. In addition to the foregoing criteria, to foster parity regarding clinic availability and accessibility for taxpayers nationwide, the IRS will consider the geographic area of applicants as part of the decision making process. The IRS will also seek to attain a proper balance of academic and non-profit organizations as well as a proper balance of start-up and existing clinics.
Interested parties are encouraged to provide comments on the IRS's administration of the grant program on an ongoing basis.
Federal Emergency Management Agency (FEMA).
Notice.
This Notice provides listings of changes made to National Flood Insurance Program (NFIP) maps produced by FEMA effective during the last 6 months of 2001.
The listings include changes to NFIP maps that became effective July 1, 2001, through December 31, 2001.
Michael K. Buckley, P.E., Director, Hazard Mapping Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, Washington, DC 20472, (202)646-2756.
In accordance with Section 1360(i) of the National Flood Insurance Reform Act of 1994, this Notice is provided to inform interested parties of changes made by FEMA to NFIP maps. The two listings provided show communities affected by map changes made by letter and communities affected by physical map changes. For each Letter of Map Change, the first listing provides the map panel(s) affected, effective (determination) date of the change, case number, and determination type. For each physical map change, the Map Revision listing provides the map panel(s) affected and the effective date of the change. The listing also identifies: (1) Those panels on which the Special Flood Hazard Areas have not been changed or have been changed only to incorporate the Letters of Map Change issued before the effective date; and (2) those panels for which a Flood Insurance Rate Map is produced for the first time, resulting only in changes to flood insurance and floodplain management requirements in the affected community. Future notices of changes to NFIP maps will be published approximately every 6 months.
Two listings are provided below. The first listing includes all Letters of Map Change issued by FEMA from July 1 through December 31, 2001. The following types of letters are included in the listing:
The second listing includes map panels that FEMA physically revised and republished from July 1 through December 31, 2001. For those map panels on which the Special Flood Hazard Areas have not been changed or have been changed only to incorporate Letters of Map Change issued before the effective date, two asterisks(**) are shown to the right of the map panel number. For those map panels for which a Flood Insurance Rate Map is produced for the first time, resulting only in changes to flood insurance and floodplain management requirements in the affected community, three asterisks(***) are shown to the right of the map panel number.
For both listings, a single asterisk is shown to the right of each county name that appears in the ”Community” column. This asterisk indicates the area covered is the unincorporated areas of that county.
Indian Health Service, DHHS.
Final rule.
The Secretary of the Department of Health and Human Services (DHHS) hereby issues this final rule to implement Title V of the Tribal Self-Governance Amendments of 2000 (the Act). The final rule has been negotiated among representatives of Self-Governance and non-Self-Governance Tribes and the DHHS. The final rule includes provisions governing how DHHS/Indian Health Service (IHS) carries out its responsibility to Indian Tribes under the Act and how Indian Tribes carry out their responsibilities under the Act. As required by section 517 (b) of the Act, the Department has developed this final rule with active Tribal participation of Indian Tribes, inter-Tribal consortia, Tribal organizations and individual Tribal members, using the guidance of the Negotiated Rulemaking Act.
This rule will become effective on June 17, 2002.
Paula Williams, Director, Office of Tribal Self-Governance, The Reyes Building, 801 Thompson Ave., Suite 240, Rockville, MD 20852, Telephone 301-443-7821. (This is not a toll-free number.)
The “Tribal Self-Governance Amendments of 2000,” Pub. L. 106-260, repeals Title III of the Indian Self-Determination Act, Pub. L. 93-638, as amended, (ISDA) and enacts a new Title V that establishes a permanent Self-Governance program within DHHS. Thus, Indian and Alaska Native Tribes are now able to compact for the operation, control, and redesign of various IHS activities on a permanent basis. Section 517 of Title V requires the Secretary, not later than 90 days after the date of the enactment of the Act, to initiate procedures under the Negotiated Rulemaking Act, 5 U.S.C. 561 et seq, to negotiate and promulgate the regulations necessary to carry out Title V. The Act calls for the establishment of a negotiated rulemaking committee pursuant to 5 U.S.C. 565, comprised only of Federal and Tribal representatives, with a majority of the Tribal government representatives representing Self-Governance Tribes. The Negotiated Rulemaking Committee on Joint Tribal and Federal Self-Governance (the Committee) conferred with and allowed representatives of Indian Tribes, inter-Tribal consortia, Tribal organizations, and individual Tribal members to actively participate in the rulemaking process.
Copies of the Committee's charter are on file with the appropriate committees of Congress and with the Library of Congress in accordance with section 9(c) of the Federal Advisory Committee Act, 5 U.S.C. Appendix.
A Notice of Intent to establish the Committee was published in the
The negotiated rulemaking meetings were open to the public. Individuals that were not voting members of the Committee had an opportunity to attend meetings and to give input to the 30 members of the Committee. The public was informed about the establishment of the Committee through a notice in the
The first meeting of the Negotiated Rulemaking Committee on Joint Tribal and Federal Self-Governance was held in San Diego, California on March 15-16, 2001. At that meeting, the Committee established three sub-committees, a meeting schedule, and a protocol for deliberations. The Committee agreed to operate based on consensus decision-making. The DHHS committed to publish all consensus decisions as the proposed rule. The Committee further agreed that any committee member and his/her constituents could comment on this proposed rule.
To complete the regulations within the statutory timeframe, the Committee divided the areas subject to regulation among three subcommittees, each co-chaired by one Federal and one Tribal representative. The sub-committees made recommendations to the Committee on whether regulations in a particular area were desirable. If the Committee agreed that regulations were desirable, the sub-committees developed options for draft regulations. The sub-committees presented their options to the Committee, which discussed them and eventually approved the proposed regulations.
Between April 2001 and August 2001, the Committee met five times in different locations throughout the country. All meetings were announced in the
The Department published proposed regulations in a Notice of Proposed Rulemaking in the
Ultimately, the Department received comments from 36 Indian Tribes and Tribal organizations, one individual, and one State. The full committee reconvened in Bethesda, Maryland, between April 15 and April 18, 2002, to review the comments, to evaluate changes suggested by the comments, and to recommend final regulatory language.
As a result of the meeting, the full committee was able to reach consensus on regulatory language on all but three issues. Discussion of these three issues are contained under the appropriate subpart in the following Summary of Regulation and Comments Received.
The Department commends the ability of the committee to cooperate and develop a rule that addresses the interests of the Tribes and the Agency. We believe this negotiated rulemaking process has been a model for developing
The narrative and discussion of comments below is keyed to specific subparts of the rule.
This subpart contains provisions describing the authority, purpose and scope of these regulations. This subpart contains Congressional policies set forth in Title V. This subpart also contains provisions regarding the effect of these regulations on existing Tribal rights, whether Title V may be construed to reduce funding for programs serving a Indian Tribe under this Title or other laws, and the effect of these regulations on Federal policy directives.
Several comments noted the lack of any Secretarial policy in the NPRM for Title V. In negotiating the NPRM for Title V, Federal and Tribal members reached an impasse based on this issue. However, to respond to the comments, Federal and Tribal committee members further negotiated language on Secretarial policy. Based upon this Administration's statements before Congress and other policy directives, the Federal representatives drafted language which recognizes the sovereign status of Indian Tribes and the Administration's support of the government-to-government relationship between Tribes and the United States. The following language was agreed upon by the Federal and Tribal members and is included as a new section 137.6:
In carrying out Tribal self-governance under Title V, the Secretary recognizes the right of Tribes to self-government and supports Tribal sovereignty and self-determination. The Secretary recognizes a unique legal relationship with Tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. The Secretary supports the self-determination choices of each Tribe and will continue to work with all Tribes on a government-to-government basis to address issues concerning Tribal self-determination.
This subpart sets forth definitions for key terms used in the balance of the regulations. Most of the definitions come from definitions set forth in Title I or Title V.
There were two comments regarding the definitions in section 137.10. One comment recommended that the definition of “Compact” be clarified. With a slight change to the proposal, the Committee agreed with the recommendation and amended the definition to include the phrase “, including such terms as the parties intend shall control year after year,”.
One comment suggested that the term “Tribal Self-Governance Advisory Committee,” a term used in section 137.204, be defined. The Committee agreed and added the following definition:
Tribal Self-Governance Advisory Committee means the Committee established by the Director of IHS that consists of Tribal representatives from each of the IHS Areas participating in Self-Governance, and that provides advocacy and policy guidance for implementation of Tribal Self-Governance within IHS.
This subpart describes the eligibility criteria an Indian Tribe must satisfy to participate in self-governance. This subpart also describes that planning and negotiation grants may be available, but not required, for participation.
A comment was received regarding section 137.25, recommending that the timing of planning and negotiation grants be spelled out in more detail. The Committee did not accept this comment because this matter can be dealt with more effectively in annual announcements regarding these grants. Therefore no change was made.
One comment recommended that the answer to section 137.26 should be amended to make it parallel to the question by adding “and to negotiate” at the end of the sentence. The Committee agreed and made the change. Another comment suggested adding additional questions and answers that provide instructions to Tribes seeking to participate in self-governance. The Committee determined that these issues are better addressed in annual agency announcements.
This subpart describes the authority for Self-Governance Tribes to negotiate compacts and identifies what is included in a compact.
No comments were received on Subpart D.
This subpart describes the authority for Self-Governance Tribes to negotiate funding agreements and identifies what is included in a funding agreement. This subpart also describes the terms required to be included in a funding agreement and the terms that may be included at the Self-Governance Tribe's option.
One comment to section 137.42 recommended explaining more about the effect of including “Tribal shares of IHS discretionary grants” in a funding agreement. The Committee concluded that Subpart E adequately addresses this matter and did not accept the recommendation.
One comment to section 137.43 suggested amending the question to make it clearer. The Committee agreed and amended the question to read: “May a Tribe negotiate and leave funds with IHS for retained services?” The Committee also changed the first word of the answer to “Yes” to be consistent with the revised question.
One comment suggested adding “or portions thereof” after “PSFAS” in the answer to section 137.43. The answer already states that “Tribal shares may be left, in whole or in part with IHS”. The proposed language would be redundant and the Committee did not make the requested change.
One comment recommended substituting statutory language for the term “Tribal share” in section 137.43. The Committee made no change because the term “Tribal share” is already defined in section 137.10 and is used appropriately in section 137.43.
One comment suggested adding in the answer to section 137.56 the words ”, including all recurring increases received and continuing eligibility for other increases.” The Committee agreed and made the change.
This subpart describes to what extent statutorily mandated grants may be
Several comments were submitted supporting the Tribal position in the Preamble that Title V provisions apply to statutorily mandated grants. The Committee did not reach agreement on this issue. Tribal committee members urged that the rule state clearly that Title V applies to statutorily mandated grants. Federal committee members rejected the Tribal view. The Secretary has included the following question and answer to the final rule as new question and answer 137.73:
None of the provisions of Title V apply.
While the final rule includes the question and answer, Tribal committee members wish to make clear that they strongly disagree with the Department's interpretation of the statute on this issue. The full discussion of the conflict in statutory construction is found in the NPRM at 67 Fed. Reg. 6999 (February 14, 2002).
This subpart describes what funds must be transferred to a Self-Governance Tribe in a funding agreement and when those funds must be transferred. This subpart describes those circumstances where the Secretary is prohibited from reducing or failing to transfer funds and where the Secretary is permitted to increase funds. This subpart also describes miscellaneous provisions pertaining to funding provided under a funding agreement. This subpart describes that a funding agreement may provide for a stable base budget and describes what funds are included in the stable base budget.
In negotiating proposed rules, the Committee agreed to the following language which was published in the NPRM as section 137.77:
When the period covered by a funding agreement crosses Federal fiscal years and unless 100 percent of the funding is available and agreed to in the funding agreement, funding for the funding agreement will be apportioned between the two fiscal years and payments due under the funding agreement associated with each respective fiscal year and will be made on the later of:
(a) The effective date of the funding agreement, or
(b) Ten days after apportionment from OMB.
One comment was received which recommended replacing section 137.77 with language reflecting the holding St. Regis Mohawk Tribe v. Area Director, Nashville Area, Indian Health Service, (D.A.B. Jan. 17, 2002). The comment proposed a new question and answer:
When a period covered by a funding agreement crosses Federal fiscal years a Tribe is entitled to be paid one hundred percent of the funding for both fiscal years at the beginning of the funding agreement.
Tribal Committee members agreed with the comment. Federal Committee members clarified that under Title V IHS provides a process for transfer of funds for this purpose. Because the Tribal and Federal Committee members disagreed on the interpretation of the holding to application of this case, the Secretary decided to delete section 137.77.
A comment on section 137.78 recommended that specific conditions be set forth in the rule regarding the timing of payments. The Committee believes that the rule adequately addresses this matter and did not make a change.
One comment recommended addressing carryover of grants in section 137.105. The Committee believes that the provisions applicable to various grants are adequately addressed in other sections and that no changes to the regulations are needed.
One comment recommended clarifying a citation to the Indian Health Care Improvement Act (IHCIA) found in Section 137.110. The Committee believes it is best not to try to interpret the IHCIA in these regulations and did not make a change.
Several comments were made regarding funds that may be included in a stable base budget. In response to the comment that the words “including direct contract support” be included in section 137.121(a), the Department is committed to recognizing all allowable program and contract support costs under section 106(a) of the Act, whether those costs are classified as direct or indirect. The proposed regulations reflect this commitment without singling out any particular classification of costs. The suggestion that Section 137.121 identify other funds that IHS agrees to is dealt with in Section 137.122. Thus, the Committee has made no change to section 137.121.
This subpart describes the final offer and rejection process.
One comment suggested adding more detail about the process by which Tribes and IHS achieve resolution after a final offer. The Committee determined that Subpart H provides sufficient detail and the Committee did not add additional questions and answers.
The Committee noted that “or” was inadvertently omitted at the end of subsection 137.132(a)(1) and has inserted it in the final rule.
In section 137.143 of the NPRM the term “Tribal shares” was substituted for the statutory language approved by the Committee. Several comments were received recommending reinsertion of the statutory language which is more accurate in the context of this rule. The Committee agreed and replaced the term “Tribal shares” with “any funds that are specifically or functionally related to the provision by the Secretary of services and benefits to the Indian Tribe or its members, all without regard to the organizational level within the Department where such functions are carried out.”
One comment recommended that section 137.190 be improved to make clear that the duplication prohibition applies to both funds and PSFAs. The comment was agreed to and the reference to “such funds” was changed to “the same funds or PSFA”. In addition, for additional clarification the concluding clause regarding eligibility for other, non-duplicative PSFAs was set forth as a free-standing sentence, and the words “except that” were deleted.
One comment recommended that section 137.210 be expanded to explain how savings are identified and distributed. In light of the provision in
This subpart contains provisions that address most of the operational aspects of self-governance.
One comment recommended that section 137.215 address what happens to Federally furnished property upon retrocession or reassumption. This is addressed expressly in the subparts regarding retrocession and reassumption at sections 137.251 and 137.264, respectively and thus, no action was required.
This subpart contains procedures authorizing the Secretary to waive regulations promulgated to implement Title V or regulations promulgated under the authority specified in section 505(b) of the Act.
No comments were received on Subpart J.
This subpart addresses the procedures that apply when a Self-Governance Tribe withdraws from a Tribal organization or inter-Tribal consortium.
Several comments objected to the NPRM's deletion of an additional sentence in section 137.238 and section 137.250 regarding the handling of contract support cost funds. Since the Act is clear and does not distinguish funds by type or treat them differently in this regard, there is no need to reference an agency policy to deal with one type of funding in a compact or funding agreement. Contract support costs are generally handled pursuant to the IHS contract support cost circular in effect.
This subpart addresses the procedures that apply when a Self-Governance Tribe retrocedes a program to the Secretary.
No comments were received on Subpart L.
This subpart addresses procedures by which the Secretary, without the consent of the Self-Governance Tribe, may reassume the operation of a program and associated funding in a compact or funding agreement.
The citation in section 137.257(d) regarding appeals was corrected in response to a comment.
One comment noted that in section 137.264, the word “reassume” should be “reassumed.” The Committee agreed and has made the change in both the question and answer.
This subpart addresses the process by which participating Self-Governance Tribes may agree to undertake construction projects and programs under section 509 of the Act. In its scope, this subpart distinguishes between construction projects, and ongoing programs that support construction projects. This subpart sets forth the process for Self-Governance Tribes to enter into and administer self-governance construction project agreements for construction projects, which may include Tribal shares of related construction programs. Alternatively, Self-Governance Tribes may assume construction programs (but not projects) using the compact and funding agreement process set forth in Subparts D and E.
Definitions are provided that are unique to this subpart. Self-Governance Tribes performing construction under section 509 are required to assume the Secretary's responsibilities for the completion of the construction project under the National Environmental Policy Act of 1969 (NEPA), the National Historic Preservation Act (NHPA), and related Federal environmental laws. This subpart describes the Secretary's responsibility to notify and consult with Indian Tribes concerning the development of construction budgets and new funding allocation methodologies, as well as when funds are available for the planning, design and construction of IHS construction projects. This subpart further describes the process that Self-Governance Tribes and the Secretary use to develop, negotiate and approve (or reject) construction project agreements under Title V. This subpart describes the Self-Governance Tribes' responsibility to complete construction project agreements and provide day-to-day management and administration for construction projects, within available funding. This subpart sets forth how Self-Governance Tribes will receive payments for construction project agreements, the process for Secretarial review and approval of project planning and design documents, as well as Secretarial review and approval of any proposed amendments to the construction project agreement.
One comment recommended changing the term “scope of work” in the definitions in section 137.280 to read “specific scope of work” to resolve an inconsistency between the proposed definition and section 501(a)(2)(B) of the Act. The comment further recommended that the definition of “specific scope of work” be revised to clarify the level of detail required for the construction project agreement. The Committee agreed to modify the term in the final rule to resolve the inconsistency, and further agreed to specify that a scope of work is a brief, written description of the work.
One comment asked if the Department may delegate its responsibilities under the NHPA without the participation or approval of the Advisory Council on Historic Preservation. Section 509(a) of the Act provides:
Indian Tribes participating under Tribal self-governance may carry out construction projects under this part if they elect to assume all Federal responsibilities under the National Environmental Policy Act * * * the National Historic Preservation Act * * * and related provisions of law that would apply if the Secretary were to undertake the construction project.
This provision requires the Department to delegate Federal environmental responsibilities for construction project agreements to Self-Governance Tribes, including the Department's responsibilities under NHPA. Subpart N sets forth procedures for a Self-Governance Tribe to assume these Federal environmental responsibilities, but is not intended to modify the statutory role of either the Council on Environmental Quality or the Advisory Council on Historic Preservation. Section 137.285 clarifies that Self-Governance Tribes must assume these Federal environmental responsibilities to carry out a construction project under Title V of the Act. Section 137.288 summarizes the Federal responsibility under section 106 of the NHPA to “afford the Advisory Council on Historic Preservation, acting through the State Historic Preservation Officer or the Tribal Historic
One comment suggested that because the abbreviations NEPA and NHPA are provided in the definitions, they should be used consistently throughout Subpart N. The Committee agreed with the comment and the abbreviations are used throughout Subpart N. The Committee also corrected the statutory reference to the NHPA in 137.288 to read 16 U.S.C. 470f.
One comment suggested that section 137.294 (a)(1) be revised to read “consult with
One comment referenced section 137.297, which provides that if a Tribe adopts a Federal agency's environmental review policy, then the Federal agency is responsible for ensuring that the policy meets the requirements of NEPA, NHPA, and any related environmental laws. This comment also recommended that an additional question and answer be added to clarify that if a Tribe adopts its own environmental review procedures, then the Tribe is responsible for deciding that it has met the requirements of these related environmental laws. The Committee agreed that Tribes are to be permitted to adopt their own environmental review policies and procedures that comply with these Federal environmental statutes without oversight by the Department, but believed that sections 137.295, 137.296, 137.308 adequately discuss the Tribes' authority to develop such policies and procedures.
One comment asked if Subpart N will apply to construction projects carried out on non-Tribal lands. The comment stated that under the Advisory Council on Historic Preservation's regulations, 36 CFR Part 800, Tribes may only apply Tribal policies and procedures to Tribal lands. Subpart N applies to all construction project agreements carried out under Title V of the Act. The Department is required to carry out its Federal environmental responsibilities wherever it undertakes construction projects, whether on Tribal or non-Tribal lands. Section 509(a) of the Act requires that the Self-Governance Tribe assume the same responsibilities that would apply if the Department were to undertake the construction project. Section 509(a) of the Act does not exempt non-Tribal lands from its coverage. As discussed above, Subpart N only sets forth procedures for the delegation of Federal environmental procedures and does not modify any Federal environmental statutory requirements.
One comment expressed concern that the regulations do not assure that Tribal policies and procedures are the same or equivalent to the Advisory Council of Historic Preservation regulations at 36 CFR part 800. The Comment further stated that Section 137.296 does not appear to be consistent with the 36 CFR part 800 provisions regarding the approval of alternate procedures.
As discussed above, Section 509(a) independently requires the Department to delegate its Federal environmental responsibilities to Self-Governance Tribes carrying out construction projects under Title V. Notwithstanding section 106 of the NHPA, section 517(a)(1) of the ISDEAA provides “the Secretary shall initiate procedures under subchapter III of chapter 5 of Title 5 [the Negotiated Rulemaking Act] to negotiate and promulgate such regulations as are necessary to carry out [Title V of the Act].” Pursuant to this authority, Subpart N sets forth the procedures for Self-Governance Tribes to assume Federal environmental responsibilities when carrying out construction projects under Title V of the Act. Section 137.296 authorizes Self-Governance Tribes to adopt Tribal or Federal environmental review procedures that comply with the statutory requirements.
One comment recommended that section 137.301(b) be revised to clarify when the Secretary is involved in addressing unforeseen environmental review costs. The Committee agreed with the comment and revised section 137.301(b) to provide that it is at the request of the Self-Governance Tribe that the Secretary will become involved. The Committee further revised section 137.301(b) to clarify that this regulation applies to unforeseen environmental review costs identified during any phase of the construction project.
One comment stated that the last sentence of section 137.307 is not grammatically correct. The committee agreed and revised the sentence in the final rule.
One comment recommended that language be restored in Section 137.320 to reflect the answer that was originally proposed by the Committee but was deleted in the NPRM. The Committee agreed with the concerns raised by the comment that the final rule reflect the consensus of the Committee and revised section 137.320 to read in part as follows:
This language is consistent with the Secretary's duty under 25 U.S.C. § 1631 to honor Tribal preferences as determined through consultation.
The Committee received four comments on behalf of twenty eight Tribes and Tribal organizations supporting the Tribal position on Department of Justice representation of Tribes and Tribal certifying officers for environmental claims brought under Section 509 of the Act. The comments proposed adding the additional question and answer suggested in the Tribal position on this area of disagreement in the NPRM:
Q: Are Indian Tribes and Tribal certifying officers entitled to the benefit of a Federal defense if they are sued as a result of carrying out their Federal environmental responsibilities?
A: Yes. Indian Tribes and Tribal certifying officers are performing Federal functions when carrying out these Federal environmental responsibilities, and they are deemed to be Federal agencies and Federal officials for this limited purpose. Under section 314 of Public Law 101-512, as amended, the Department of Justice is authorized and directed to defend Indian Tribes and Tribal employees who are sued with respect to claims resulting from the performance of these Federal functions.
The Federal and Tribal committee members did not reach consensus on whether the Department of Justice would represent Tribes and Tribal certifying officers in environmental actions. The Tribal representatives believe that the potential for Self-Governance Tribes to assume Federal responsibilities for NEPA and NHPA compliance under Title V removes a substantial burden from IHS construction program managers and places that burden on Tribal officials. In transferring this burden, it is important to treat Tribal and Federal certifying officials equally. The Tribal representatives believe this can best be achieved by assuring Tribal certifying officials the benefit of a Federal defense under section 314 of Pub. L. 101-512 for NEPA enforcement actions brought against them. This protection is essential and fundamentally fair.
The Tribal representatives believe their position is fully consistent with the language of the statute and greatly furthers the Title V Congressional policy of providing Self-Governance Tribes with all the resources, benefits and protections that IHS officials would have in carrying out this core governmental function.
The Tribal representatives believe that a narrow interpretation of the coverage of section 314 would shift the burden from the Department of Justice to the IHS, or worse still, to American Indian and Alaska Native beneficiaries of IHS health programs. A narrow interpretation would require Self-Governance Tribes to incur substantial expense for liability insurance and/or legal representation. The IHS would then, in the Tribal representatives' view, be legally obliged to provide adequate contract support funds to cover these expenses. If it failed to do so as a result of shortfalls or for some other reason, funds that should be used to provide direct services would be diverted and the beneficiaries would suffer from diminished health care services, again contrary to Congress' intent. An unduly narrow interpretation would thus conflict with Congressional intent in Title V and impair the Federal trust responsibility to deliver health care to Indian people. See S. Rep. 100-274, Dec. 21, 1987 at 2646 (“The United States has assumed a trust responsibility to provide health care to Native Americans. The intent of the Committee is to prevent the Federal Government from divesting itself, through the self-determination process, of the obligation it has to properly carry out that responsibility.”).
The Tribal Representatives believe that Congress clearly intended to confer on Self-Governance Tribes the same benefits that Federal officials enjoy when performing these Federal functions. It is clear that Self-Governance Tribes are carrying out Federal responsibilities. The nature of the legal liability associated with such responsibilities does not change because a Tribal government is performing a Federal function. The unique nature of the legal trust relationship between the Federal Government and Tribal governments requires that the Federal Government provide liability insurance coverage in the same manner as such coverage is provided when the Federal Government performs the function. S. Rep. 100-274, Dec. 21, 1987 at 2645. Similarly, transferring the obligation to perform NEPA compliance determinations from Federal to Tribal officials, with virtually no additional funding and without providing these officials with a Federal defense, would create a windfall for the Federal Government, at the expense of Indian health care, contrary to Congressional intent. Department of Justice attorneys are well-experienced in APA litigation and would be in a better position to defend Tribal government officials in NEPA enforcement actions than would members of the private bar. The rare cases likely to be brought under this law will create no undue hardship or expense for the Department of Justice.
Tribal representatives are committed to working with the Secretary to address the concerns identified by the Committee through Secretarial interpretation, further rulemaking, and clarifying legislation that further fosters self-governance. Further clarification of the Tribal position may be found at 67 FR 7000-01 (February 14, 2002).
While the Department has carefully considered the views of the Tribal representatives on this issue, it cannot accept the Tribal proposal to add a question and answer providing Department of Justice representation for environmental actions brought under section 509(a). Section 314 of Public Law 101-512 applies only to actions brought under the Federal Tort Claims Act, not suits seeking to enforce NEPA, NHPA, or related environmental statutes. Moreover, as a matter of law, the Act treats the enforcement of environmental responsibilities differently from any other claims brought against a Self-Governance Tribe arising from self-governance compacts or construction project agreements. Section 509 of the Act specifically requires that the Self-Governance Tribe designate a certifying officer and accept the jurisdiction of the Federal court for purposes of enforcement of environmental statutes. The Tribal position, that suits to enforce environmental responsibilities are to be deemed suits against the United States, conflicts with these statutory requirements.
One comment recommended revising section 137.336(b)(5) and adding a new section 137.343(c) to allow Self-Governance Tribes to designate excess funds remaining at the end of a lump sum fixed price project as either savings or profit. The Committee agreed and adopted the recommendation in the final rule.
One comment recommended that section 137.338 be revised to replace the word “may” with “shall” to be consistent with similar provisions in Title I of the Act. The Committee agreed with the recommendation and revised section 137.338 to replace the word “may” with the word “must.”
One comment expressed appreciation to the Committee for the payment provisions set forth in section 137.341 “as a prime example of a regulatory provision that seeks to liberally construe the Act to favor Self-Governance Tribes.” No action was required.
One comment read section 137.372 as requiring that Self-Governance Tribes submit fee to trust applications to the Secretary of Health and Human Services for real property purchased with construction project agreement funds. The comment questioned why the Secretary of DHHS needs to be involved at all in the process of transferring fee land into trust when the Department of Interior's regulations at 25 CFR Part 151 already set forth a detailed process for transferring land into trust. The Committee agreed with the comment and revised section 137.372 in the final rule.
Consistent with this comment, the Committee also revised sections 137.373 and 137.374 to clarify that all references to the Secretary taking title to property purchased with construction project agreement funds refer to fee title, not trust title. The question in section 137.374 was also revised to include leasing to be consistent with the answer. One Committee member recommended that section 137.374 be further revised to discuss Tribal acquisitions of government surplus property. The Committee did not accept this recommendation because the revised regulation covers all acquisitions of property, including government surplus property.
The Committee received four comments on behalf of twenty-eight Tribes and Tribal organizations supporting the Tribal position on whether the Davis-Bacon Act applies to construction project agreements that include funds from both Federal and non-Federal sources, including Tribal contributions and State funds. The comments proposed adding the additional question and answer suggested in the Tribal position on this area of disagreement in the NPRM:
Q: Do Davis-Bacon wage rates apply to construction projects performed by Tribes using both Federal funds and non-Federal funds?
A: The Davis-Bacon wage rates only apply to the portion of the project that is funded with Federal funds. The Davis-Bacon Act and wage rates do not apply to portions of the project funded with non-Federal funds or when Tribes perform work with their own employees.
The Federal and Tribal committee members did not reach consensus on whether the Davis-Bacon Act applies to
The Tribal representatives believe the proposed regulation is supported by 509(g) of the Act, and at best, this section of the Act is ambiguous. Section 512 requires that the “Secretary shall interpret all Federal laws * * * in a manner that will facilitate * * * the achievement of Tribal health goals and objectives.” Furthermore, even if the language of Title V is open to more than one reasonable interpretation, rules of statutory construction for Indian legislation require that the statute be construed liberally in favor of the Self-Governance Tribes.
Tribal representatives are committed to working with the Secretary to address the concerns identified by the Committee through Secretarial interpretation, further rulemaking, and clarifying legislation that further fosters self-governance. Further clarification of the Tribal position may be found at 67 FR 7000 (February 14, 2002).
While the Department has given careful consideration to the views of the Tribal representatives on this issue, it cannot accept the Tribal proposal. The Department recognizes that requiring the use of Federal Davis-Bacon wage rates on jointly funded projects is cumbersome, especially for Self-Governance Tribes located in multiple prevailing wage jurisdictions. Moreover, the Department is concerned that this requirement may discourage Self-Governance Tribes from using non-Federal funds to build or improve health care facilities. However, the Department is persuaded that the wording of section 509(e) of the Act precludes adopting the proposed Q&A.
This subpart addresses consultation with Self-Governance Tribes in the budget formulation process.
Several comments raised concerns about the deletion of sections 137.400, 401 and 402 and asked that they be reinstated in the final rule. Sections 137.400 and 137.402 were included in the proposed rule recommended by the rulemaking committee but deleted from the proposed rule published in the
The IHS will consult with Tribes on budget issues consistent with Administration policy on Tribal consultation.
One comment noted that the term “Title I” in section 137.405 should be capitalized. The correction was made.
In response to a comment regarding a grammatical correction to section 137.407(d), the word “headquarter's” was changed to “headquarters”.
The committee found that the word “and” had been misplaced in section 137.419(b). The word has been moved to section 137.419(c).
This subpart addresses post-award appeals, pre-award appeals (including informal conferences), appeals of immediate reassumptions, and attorneys fees and costs under the Equal Access to Justice Act.
One comment recommended that section 137.421 be clarified to have the deadline to request an informal conference run from the date of receipt, and to provide Tribes with 45 days rather than 30 days to request an informal conference. Since section 137.421 already provides that the deadline runs from the date of receipt, rather than mailing, the Committee made no change.
One comment suggested additional language in subsection 137.422(c) to address the participation by an OTSG representative in the informal conference. In response, the Committee agreed to add the following sentence to the end of section 137.422(d):
Such designated representatives may include OTSG.
We have examined the impacts of this rule as required by Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612) as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121) and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). 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). Unless it is certified that the final rule is not expected to have a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act requires analysis of regulatory options that minimize any significant economic impact of a rule on small entities. Section 202 of the Unfunded Mandates Reform Act (Public Law 104-4) requires an assessment of anticipated costs and benefits before proposing any rule that may result in expenditure by State, local, and Tribal governments, in aggregate, or by the private sector, of $110 million in any one year (adjusted annually for inflation). We have determined that this rule is consistent with the principles set forth in the Executive Order and in these statutes and find that this rule will not have an effect on the economy that exceeds $110 million in any one year (adjusted for inflation). Therefore, no further analysis is required under the Unfunded Mandates Reform Act. Because this rule
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. We have reviewed this final rule under the threshold criteria of Executive Order 13132, Federalism, and have determined that this final rule would not have substantial direct effect on the States, on the relationship between the National Government and States, or on the distribution of power and responsibilities among the various levels of government. As this rule has no Federalism implications, a Federalism summary impact statement is not required.
In accordance with the Act, this final rule was developed by a negotiated rulemaking committee comprised only of Federal and Tribal representatives, with a majority of the Tribal government representatives representing Self-Governance Tribes. The committee agreed to operate based on consensus decisionmaking. The regulations have been agreed on by consensus except as noted in the preamble.
The DHHS has determined that this final rule does not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to NEPA.
This regulation contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Management Reduction Act of 1995 (44 U.S.C. 3501-3520). The information collection requirements were negotiated between the Department and Tribal representatives through the negotiated rulemaking process and were agreed to by the parties in the negotiation. Health status reporting requirements will be negotiated on an individual Tribal basis and included in individual compacts or funding agreements. Response to the data collection is voluntary; however, submission of the data is essential to participation in the Tribal Self-governance process. Self-governance Tribes have the option of participating in a voluntary national uniform data collection effort with the IHS. Final submission of these requirements have been sent to OMB for approval pursuant to PRA. In the course of its review, OMB will consider any public comments received on these requirements as expressed in the proposed rule. The information to be collected is as follows:
The provisions in this subpart require collection of information that indicates successful completion of the planning phase, a Tribal resolution requesting participation in self-governance, and information that demonstrates financial stability and financial capacity for participation in self-governance. The Department needs and uses this information to determine the qualified applicant pool for the self-governance project. The information is collected at the time the Indian Tribe requests participation in self-governance. The annual reporting and record keeping burden for this collection of information is estimated to average 10 hours for each new request for 50 respondents. The total annual reporting and record keeping burden for this collection is estimated to be 500 hours.
The compact sets forth the general terms of the government-to-government relationship between the Self-Governance Tribe and the Secretary and any terms the parties intend to control year after year. A funding agreement is required for each Self-Governance Tribe participating in self-governance and it provides the information that authorizes the Self-Governance Tribe to plan, conduct, consolidate, administer, and receive funding. The funding agreement identifies the programs, services, functions, and activities (or portions thereof) (PSFAs) to be performed or administered; the budget category; the funds to be provided; the time and method of transfer of the funds; and, information regarding any other negotiated provisions or Tribal requests for stable base funding.
The provisions in this subpart require collection of information or record-keeping requirements that may be contained in either the compact or the funding agreement, such as the information provided in health status reports or the information needed when requesting multi-year funding. The Department needs and uses this information to determine eligibility of the applicant; to evaluate applicant capabilities; and to protect the service population and safeguard Federal funds and other resources. The information serves as the official record of the compact or funding agreement terms agreed to by the negotiating parties. The information is collected at the time the Self-Governance Tribe makes an initial request to compact or when the Self-Governance Tribe decides to take specific action to retrocede. The annual reporting and record keeping burden for this collection of information is estimated to average 34 hours for each response for 50 respondents. The total annual reporting and record keeping burden for this collection is estimated to be 1700 hours.
The provisions in this subpart require collection of information regarding the Self-Governance Tribes' assumption of Federal responsibilities with respect to construction, including building codes and architectural and engineering standards (including health and safety), the successful completion of the construction project, and carrying out the negotiated construction project agreement. The information needed includes the semi-annual construction project progress and financial reports.
The Department needs and uses this information to determine eligibility of the applicant and to protect the service population and safeguard Federal funds and other resources. The information serves as the official record of the compact or funding agreement terms agreed to by the negotiating parties.
The information is collected at the time the Self-Governance Tribe negotiates the construction project agreement and through semi-annual reports. The annual reporting and record keeping burden for this collection of information is estimated to average 40 hours for each response for 30 respondents. The total annual burden for the collection is estimated to be 1200 hours.
This subpart provides the appeals procedures available to Indian Tribes. It explains how to file a notice of appeal and what the notice should contain as well as instructions for submitting a written statement of objections. The Department uses this information to evaluate and grant or deny an appeal. The information is collected and reported once an Indian Tribe files an appeal. The annual reporting and record keeping burden for this collection of information is estimated to average 40 hours for each response for 8 respondents. The total annual reporting
In accordance with the PRA, no person is required to respond to an information collection request unless the form or regulation requesting the information has a currently valid OMB control number. This number will appear in 42 CFR part 137 upon approval.
This rule imposes no unfunded mandates on any governmental or private entity and is in compliance with the provisions of the Unfunded Mandates Act of 1995.
Employment, Government procurement, Health care, Health facilities, Indians, Penalties, Reporting and recordkeeping requirements.
Grant programs-education, Grant programs-health, Grant programs-Indians, Health care, Health professions, Indians, Penalties, Reporting and recordkeeping requirements, Scholarships and fellowships, Student aid.
Grant programs-Indians, health care.
25 U.S.C. 13; sec. 3, 68 Stat. 674 (42 U.S.C. 2001, 2003); Sec. 1, 42 Stat. 208 (25 U.S.C. 13); 42 U.S.C. 2001, unless otherwise noted.
Sec.203, 83 Stat. 763; 30 U.S.C.843, unless otherwise noted.
25 U.S.C. 458
(a) Authority. These regulations are prepared, issued and maintained with the active participation and representation of Indian Tribes, Tribal organizations and inter-Tribal consortia pursuant to the guidance of the negotiated rulemaking procedures required by section 517 of the Act [25 U.S.C. 458aaa-16].
(b) Purpose. These regulations codify rules for self-governance compacts, funding agreements, and construction project agreements between the Department of Health and Human Services (DHHS) and Self-Governance Tribes to implement sections 2, 3, and 4 of Pub. L. 106-260.
(c) Scope. These regulations are binding on the Secretary and on Indian Tribes carrying out programs, services, functions, and activities (or portions thereof) (PSFAs) under Title V except as otherwise specifically authorized by a waiver under section 512(b) of the Act [25 U.S.C. 458aaa-11(b)].
(d) Information collection. The information collection requirements have been submitted to the Office of Management and Budget (OMB) and are pending OMB approval.
(a) According to section 2 of Pub. L. 106-260, Congress has declared that:
(1) The Tribal right of self-government flows from the inherent sovereignty of Indian Tribes and nations;
(2) The United States recognizes a special government-to-government relationship with Indian Tribes, including the right of the Indian Tribes to self-governance, as reflected in the Constitution, treaties, Federal statutes, and the course of dealings of the United States with Indian Tribes;
(3) Although progress has been made, the Federal bureaucracy, with its centralized rules and regulations, has eroded Tribal Self-Governance and dominates Tribal affairs.
(4) The Tribal Self-Governance Demonstration Project, established under title III of the Indian Self-Determination Act (ISDA) [25 U.S.C. 450f note] was designed to improve and perpetuate the government-to-government relationship between Indian Tribes and the United States and to strengthen Tribal control over Federal funding and program management;
(5) Although the Federal Government has made considerable strides in improving Indian health care, it has failed to fully meet its trust responsibilities and to satisfy its obligations to the Indian Tribes under treaties and other laws; and
(6) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that transferring full control and funding to Tribal governments, upon Tribal request, over decision making for Federal PSFAs:
(i) Is an appropriate and effective means of implementing the Federal policy of government-to-government relations with Indian Tribes; and
(ii) Strengthens the Federal policy of Indian self-determination.
(b) According to section 3 of Pub. L. 106-260, Congress has declared its policy to:
(1) Permanently establish and implement Tribal Self-Governance within the DHHS;
(2) Call for full cooperation from the DHHS and its constituent agencies in the implementation of Tribal Self-Governance to—
(i) Enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian Tribes;
(ii) Permit each Indian Tribe to choose the extent of its participation in self-governance in accordance with the provisions of the ISDA relating to the provision of Federal services to Indian Tribes;
(iii) Ensure the continuation of the trust responsibility of the United States to Indian Tribes and Indians;
(iv) Affirm and enable the United States to fulfill its obligations to the Indian Tribes under treaties and other laws;
(v) Strengthen the government-to-government relationship between the United States and Indian Tribes through direct and meaningful consultation with all Tribes;
(vi) Permit an orderly transition from Federal domination of programs and services to provide Indian Tribes with meaningful authority, control, funding, and discretion to plan, conduct, redesign, and administer PSFAs that meet the needs of the individual Tribal communities;
(vii) Provide for a measurable parallel reduction in the Federal bureaucracy as programs, services, functions, and activities (or portion thereof) are assumed by Indian Tribes;
(viii) Encourage the Secretary to identify all PSFAs of the DHHS that may be managed by an Indian Tribe under this Act and to assist Indian Tribes in assuming responsibility for such PSFAs; and
(ix) Provide Indian Tribes with the earliest opportunity to administer PSFAs from throughout the Department.
(c) According to section 512(a) of the Act [25 U.S.C. 458aaa-11(a)], Congress has declared, except as otherwise provided by law, the Secretary shall interpret all Federal laws, Executive Orders, and regulations in a manner that will facilitate:
(1) The inclusion of PSFAs and funds associated therewith, in the agreements entered into under this section;
(2) The implementation of compacts and funding agreements entered into under this title; and
(3) The achievement of Tribal health goals and objectives.
(d) According to section 512(f) of the Act [25 U.S.C. 458aaa-11(f)], Congress has declared that each provision of Title V and each provision of a compact or funding agreement shall be liberally construed for the benefit of the Indian Tribe participating in and any ambiguity shall be resolved in favor of the Indian Tribe.
(e) According to section 515(b) of the Act [25 U.S.C. 458aaa-14(b)], Congress has declared that nothing in the Act shall be construed to diminish in any way the trust responsibility of the United States to Indian Tribes and individual Indians that exists under treaties, Executive orders, or other laws and court decisions.
(f) According to section 507(g) of the Act [25 U.S.C. 458aaa-6(g)], Congress has declared that the Secretary is prohibited from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian Tribes and individual Indians that exists under treaties, Executive orders, other laws, or court decisions.
(g) According to section 515(c) of the Act [25 U.S.C. 458aaa-14(c)], Congress has declared that the Indian Health Service (IHS) under this Act shall neither bill nor charge those Indians who may have the economic means to pay for services, nor require any Tribe to do so. Nothing in this section shall impair the right of the IHS or an Indian Tribe to seek recovery from third parties section 206 of the Indian Health Care Improvement Act [25 U.S.C. 1621e], under section 1 of the Federal Medical Care Recovery Act [42 U.S.C. 2651], and any other applicable Federal, State or Tribal law.
(h) According to section 507(e) of the Act [25 U.S.C. 458aaa-6(e)], Congress has declared that in the negotiation of compacts and funding agreements the Secretary shall at all times negotiate in good faith to maximize implementation of the self-governance policy. The Secretary shall carry out Title V in a manner that maximizes the policy of Tribal Self-Governance, and in a manner
Nothing in this part shall be construed as:
(a) Affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by Indian Tribes;
(b) Terminating, waiving, modifying, or reducing the trust responsibility of the United States to the Indian Tribe(s) or individual Indians. The Secretary must act in good faith in upholding this trust responsibility;
(c) Mandating an Indian Tribe to apply for a compact(s) or grant(s) as described in the Act; or
(d) Impeding awards by other Departments and agencies of the United States to Indian Tribes to administer Indian programs under any other applicable law.
No, if an Indian Tribe alleges that a compact or funding agreement violates section 515(a) of the Act [25 U.S.C. 458aaa-14(a)], the Indian Tribe may apply the provisions of section 110 of the Act [25 U.S.C. 450m-1].
Unless expressly agreed to by the Self-Governance Tribe in the compact or funding agreement, the Self-Governance Tribe shall not be subject to any agency circular, policy, manual, guidance, or rule adopted by the IHS, except for the eligibility provisions of section 105(g) of the Act [25 U.S.C. 450j(g)] and regulations promulgated under section 517 of the Act [25 U.S.C. 458aaa-16(e)].
In carrying out Tribal self-governance under Title V, the Secretary recognizes the right of Tribes to self-government and supports Tribal sovereignty and self-determination. The Secretary recognizes a unique legal relationship with Tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. The Secretary supports the self-determination choices of each Tribe and will continue to work with all Tribes on a government-to-government basis to address issues concerning Tribal self-determination.
Unless otherwise provided in this part:
Act means sections 1 through 9 and Titles I and V of the Indian Self-Determination and Education Assistance Act of 1975, Public Law 93-638, as amended.
Appeal means a request by an Indian Tribe for an administrative review of an adverse decision by the Secretary.
Compact means a legally binding and mutually enforceable written agreement, including such terms as the parties intend shall control year after year, that affirms the government-to-government relationship between a Self-Governance Tribe and the United States.
Congressionally earmarked competitive grants as used in section 505(b)(1) of the Act [25 U.S.C. 458aaa-4(b)(1)] means statutorily mandated grants as defined in this section and used in subpart H of this part.
Contract means a self-determination contract as defined in section 4(j) of the Act [25 U.S.C. 450b].
Days means calendar days; except where the last day of any time period specified in these regulations falls on a Saturday, Sunday, or a Federal holiday, the period shall carry over to the next business day unless otherwise prohibited by law.
Department means the Department of Health and Human Services.
Director means the Director of the Indian Health Service.
Funding agreement means a legally binding and mutually enforceable written agreement that identifies the PSFAs that the Self-Governance Tribe will carry out, the funds being transferred from the Service Unit, Area, and Headquarter's levels in support of those PSFAs and such other terms as are required, or may be agreed upon, pursuant to Title V.
Gross mismanagement means a significant, clear, and convincing violation of a compact, funding agreement, or regulatory or statutory requirements applicable to Federal funds transferred to an Indian Tribe by a compact or funding agreement that results in a significant reduction of funds available for the PSFAs assumed by a Self-Governance Tribe.
IHS means Indian Health Service.
IHS discretionary grant means a grant established by IHS pursuant to the IHS’ discretionary authority without any specific statutory directive.
Indian means a person who is a member of an Indian Tribe.
Indian Tribe means any Indian Tribe, band, nation, or other organized group, or community, including pueblos, rancherias, colonies, and any Alaska Native Village, or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; provided that in any case in which an Indian Tribe has authorized another Indian Tribe, an inter-Tribal consortium, or a Tribal organization to plan for or carry out programs, services, functions, or activities (or portions thereof) on its behalf under Title V, the authorized Indian Tribe, inter-Tribal consortium or Tribal organization shall have the rights and responsibilities of the authorizing Indian Tribe (except as otherwise provided in the authorizing resolution or in this part). In such event, the term “Indian Tribe” as used in this part includes such other authorized Indian Tribe, inter-Tribal consortium, or Tribal organization.
Indirect costs shall have the same meaning as it has in 25 CFR 900.6 as applied to compacts, funding agreements and construction project agreements entered into under this part.
Inherent Federal functions means those Federal functions which cannot legally be delegated to Indian Tribes.
Inter-Tribal consortium means a coalition of two or more separate Indian Tribes that join together for the purpose of participating in self-governance, including Tribal organizations.
OMB means the Office of Management and Budget.
PSFA means programs, services, functions, and activities (or portions thereof).
Real property means any interest in land together with the improvements, structures, and fixtures and appurtenances thereto.
Reassumption means rescission, in whole or part, of a funding agreement and assuming or resuming control or operation of the PSFAs by the Secretary without consent of the Self-Governance Tribe.
Retained Tribal share means those funds that are available as a Tribal share but which the Self-Governance Tribe elects to leave with the IHS to administer.
Retrocession means the voluntary return to the Secretary of a self-governance program, service, function or activity (or portion thereof) for any reason, before or on the expiration of the term of the funding agreement.
Secretary means the Secretary of Health and Human Services (and his or her respective designees.)
Self-Governance means the program of self-governance established under section 502 of the Act [25 U.S.C. 458aaa-1].
Self-Governance Tribe means an Indian Tribe participating in the program of self-governance pursuant to section 503(a) of the Act [25 U.S.C. 458aaa-2(a)] or selected and participating in self-governance pursuant to section 503(b) of the Act [25 U.S.C. 458aaa-2(b)].
Statutorily mandated grant as used in this section and subpart F of this part means a grant specifically designated in a statute for a defined purpose.
Title I means sections 1 through 9 and Title I of the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. 93-638, as amended.
Title V means Title V of the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. 93-638, as amended.
Tribal organization means the recognized governing body of any Indian Tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities; provided, that in any case where a contract or compact is entered into, or a grant is made, to an organization to perform services benefitting more than one Indian Tribe, the approval of each such Indian Tribe shall be a prerequisite to the entering into or making of such contract, compact, or grant.
Tribal Self-Governance Advisory Committee means the Committee established by the Director of IHS that consists of Tribal representatives from each of the IHS Areas participating in Self-Governance, and that provides advocacy and policy guidance for implementation of Tribal Self-Governance within IHS.
Tribal share means an Indian Tribe's portion of all funds and resources that support secretarial PSFAs that are not required by the Secretary for the performance of inherent Federal functions.
Those Self-Governance Tribes described in 503(a) of the Act [25 U.S.C. 458aaa-2(a)] participating in the Title III Tribal Self-Governance Demonstration Project and up to 50 additional Indian Tribes per year that meet the criteria in § 137.18 may participate in self-governance.
The first Indian Tribes who apply and are determined to be eligible shall have the option to participate in self-governance. Any Indian Tribe denied participation due to the limitation in number of Indian Tribes that may take part is entitled to participate in the next fiscal year, provided the Indian Tribe continues to meet the financial stability and financial management capacity requirements.
Yes, Indian Tribes may either:
(a) Each sign the same compact and/or funding agreement, provided that each one meets the criteria to participate in self-governance and accepts legal responsibility for all financial and administrative decisions made under the compact or funding agreement, or
(b) Authorize another Indian Tribe to participate in self-governance on their behalf.
To be eligible to participate in self-governance, an Indian Tribe must have:
(a) Successfully completed the planning phase described in § 137.20;
(b) Requested participation in self-governance by resolution or other official action by the governing body of each Indian Tribe to be served; and
(c) Demonstrated, for three fiscal years, financial stability and financial management capability.
The planning phase must be conducted to the satisfaction of the Indian Tribe and must include:
(a) legal and budgetary research; and
(b) internal Tribal government planning and organizational preparation relating to the administration of health programs.
The Indian Tribe provides evidence that, for the three years prior to participation in self-governance, the Indian Tribe has had no uncorrected significant and material audit exceptions in the required annual audit of the Indian Tribe's self-determination contracts or self-governance funding agreements with any Federal agency.
Yes, if the Indian Tribe chooses to centralize its self-determination or self-governance financial and administrative functions with non-self-determination or non-self-governance financial and administrative functions, such as personnel, payroll, property management, etc., the Secretary may consider uncorrected significant and material audit exceptions related to the integrity of a cross-cutting centralized function in determining the Indian Tribe's eligibility for participation in the self-governance program.
No, meeting the criteria set forth in §§ 137.21 and 137.22, shall be conclusive evidence of the required stability and capability to participate in self-governance.
Yes, any Indian Tribe may apply, as provided in § 137.25, for a grant to assist it to:
(a) Plan to participate in self-governance; and
(b) Negotiate the terms of the compact and funding agreement between the Indian Tribe and Secretary.
Subject to the availability of funds, IHS will annually publish a notice of the number of planning and negotiation grants available, an explanation of the application process for such grants, and the criteria for award. Questions may be directed to the Office of Tribal Self-Governance.
No, an Indian Tribe may use other resources to meet the planning requirement and to negotiate.
A self-governance compact is a legally binding and mutually enforceable
A compact shall include general terms setting forth the government-to-government relationship consistent with the Federal Government's trust responsibility and statutory and treaty obligations to Indian Tribes and such other terms as the parties intend to control from year to year.
Yes, Tribes must have a compact in order to participate in self-governance.
Yes, at an Indian Tribe's option, a funding agreement may be negotiated prior to or at the same time as the negotiation of a compact.
No, a compact is a separate document from a funding agreement, and the compact must be executed before or at the same time as a funding agreement.
Upon approval and execution of a self-governance compact, the compact remains in effect for so long as permitted by Federal law or until terminated by mutual written agreement or retrocession or reassumption of all PSFAs.
A funding agreement is a legally binding and mutually enforceable written agreement that identifies the PSFAs that the Self-Governance Tribe will carry out, the funds being transferred from service unit, area and headquarters levels in support of those PSFAs and such other terms as are required or may be agreed upon pursuant to Title V.
At the Self-Governance Tribe's option, all PSFAs identified in and in accordance with section 505(b) of the Act must be included in a funding agreement, subject to section 507(c) of the Act [25 U.S.C. 458aaa-6(c)].
All Tribal shares identified in sections 505(b)(1) [25 U.S.C. 458aaa-4(b)(1)] and 508(c) of the Act [25 U.S.C. 458aaa-7(c)] may be included in a funding agreement, including Tribal shares of IHS discretionary grants.
Yes, at the discretion of the Self-Governance Tribe, Tribal shares may be left, in whole or in part, with IHS for certain PSFAs. These shares are referred to as a “retained Tribal shares.”
A funding agreement must include terms required under section 505(d) of the Act [25 U.S.C. 458aaa-4(d)] and provisions regarding mandatory reporting and reassumption pursuant to section 507(a) of the Act [25 U.S.C. 458aaa-6(a)], unless those provisions have been included in a compact.
Yes, at the Self-Governance Tribe's option, additional terms may be included as set forth in sections 506 [25 U.S.C. 458aaa-5] and 516(b) of the Act [25 U.S.C. 458aaa-15(b)]. In addition, any other terms to which the Self-Governance Tribe and the Secretary agree may be included.
(a) Yes, the provisions of Title I listed in section 516(a) of the Act [25 U.S.C. 458aaa-15(a)] and section 314 of Pub. L. 101-512, as amended, [25 U.S.C. 450f note] mandatorily apply to a compact, funding agreement and construction project agreement to the extent they are not in conflict with Title V. In addition, at the option of a Self-Governance Tribe, under section 516(b) of the Act [25 U.S.C. 458aaa-15(b)] any provisions of Title I may be included in the compact or funding agreement.
(b) The provisions of Title I referenced in section 516(a) of the Act [25 U.S.C. 458aaa-15(a)] are sections 5 [25 U.S.C. 450c], 6 [25 U.S.C. 450d], 7 [25 U.S.C. 450e], 102(c) and (d) [25 U.S.C. 450f(c) and (d)], 104 [25 U.S.C. 450i], 105(k) and (l) [25 U.S.C. 450j(k) and (l)], 106(a) through (k) [25 U.S.C. 450j-1(a) through (k)], and 111 [25 U.S.C. 450n] of the Act.
The incorporated Title I provision shall have the same force and effect as if it were set out in full in Title V.
In that event, such incorporation shall be deemed effective immediately and shall control the negotiation and resulting compact and funding agreement.
A funding agreement shall have the term mutually agreed to by the parties. Absent notification from an Indian Tribe that it is withdrawing or retroceding the operation of one or more PSFAs identified in the funding agreement, the funding agreement shall remain in full force and effect until a subsequent funding agreement is executed.
Yes, the provisions of a funding agreement, including all recurring increases received and continuing eligibility for other increases, remain in full force and effect until a subsequent funding agreement is executed. Upon execution of a subsequent funding agreement, the provisions of such a funding agreement are retroactive to the end of the term of the preceding funding agreement.
A funding agreement may be amended by the parties as provided for in the funding agreement, Title V, or this part.
Yes, in accordance with section 505(b)(2) of the Act [25 U.S.C. 458aaa-4(b)(2)], a statutorily mandated grant may be added to the funding agreement after award.
Yes, grant funds shall be added to the funding agreement as an annual lump sum advance payment after the grant is awarded.
Yes, a Self-Governance Tribe may keep Interest Earned on Statutorily Mandated Grant Funds.
Interest earned on such funds must be used to enhance the grant program including allowable administrative costs.
No, unless it is permitted under the statute authorizing the grant or under the terms and conditions of the grant award, funds from a statutorily mandated grant may not be reallocated.
No, unless it is permitted under the statute authorizing the grant or under the terms and conditions of the grant award, a program added to a funding agreement under a statutorily mandated grant may not be redesigned.
Yes, the reporting requirements for a statutorily mandated grant program added to a funding agreement are subject to the terms and conditions of the grant award.
Yes, the Secretary and the Self-Governance Tribe may develop separate programmatic reporting requirements for statutorily mandated grants.
Yes, Self-Governance Tribes and their employees carrying out statutorily mandated grant programs are added to a funding agreement covered by the FTCA. Regulations governing coverage under the FTCA are published at 25 CFR Part 900, Subpart M.
None of the provisions of Title V apply.
Subject to the terms of any compact or funding agreement, the Secretary must transfer to a Tribe all funds provided for in the funding agreement, pursuant to section 508(c) of the Act [25 U.S.C. 458aaa-7(c)] and § 137.80. The Secretary shall provide funding for periods covered by joint resolution adopted by Congress making continuing appropriations, to the extent permitted by such resolutions.
When a funding agreement requires an annual transfer of funding to be made at the beginning of a fiscal year, or requires semiannual or other periodic transfers of funding to be made commencing at the beginning of a fiscal year, the first such transfer shall be made not later than 10 days after the apportionment of such funds by the OMB to the Department, unless the funding agreement provides otherwise.
The Secretary must transfer any funds that were not paid in the initial lump sum payment within 10 days after distribution methodologies and other decisions regarding payment of those funds have been made by the IHS.
Yes, upon Tribal request, the Secretary must negotiate a funding agreement for a term longer or shorter than a year. All references in these regulations to funding agreements shall also include funding agreements for a term longer or shorter than one year.
The Secretary must include funds in a funding agreement in an amount equal to the amount that the Self-Governance Tribe would have been entitled to receive in a contract under Title I, including amounts for direct program costs specified under section 106(a)(1) of the Act and amounts for contract support costs specified under section 106(a) (2), (3), (5), and (6) of the Act [25 U.S.C. 450j-1(a)(2), (3), (5) and (6)]. In addition, the Secretary shall include any funds that are specifically or functionally related to the provision by the Secretary of services and benefits to the Self-Governance Tribe or its members, all without regard to the organizational level within the Department where such functions are carried out.
Yes, sections 508(d)(1)(A) and (B) of the Act [25 U.S.C. 458aaa-7(d)(1)(A) and (B)] expressly prohibit the Secretary from:
(a) Failing or refusing to transfer to a Self-Governance Tribe its full share of any central, headquarters, regional, area, or service unit office or other funds due under Title V, except as required by Federal law, and
(b) From withholding portions of such funds for transfer over a period of years.
Yes, the Secretary is prohibited from reducing the amount of funds required under Title V to make funding available for self-governance monitoring or administration.
No, in accordance with section 508(d)(1)(C)(ii) of the Act [25 U.S.C. 458aaa-7(d)(1)(C)(ii)], the Secretary is prohibited from reducing the amount of funds required under Title V in subsequent years, except pursuant to:
(a) A reduction in appropriations from the previous fiscal year for the program or function to be included in a compact or funding agreement;
(b) A Congressional directive in legislation or accompanying report;
(c) A Tribal authorization;
(d) A change in the amount of pass-through funds subject to the terms of the funding agreement; or
(e) Completion of a project, activity, or program for which such funds were provided.
No, the Secretary may not reduce the amount of funds required under Title V to pay for Federal functions, including Federal pay costs, Federal employee
No, the Secretary may not reduce the amount of funds required under Title V to pay for costs of Federal personnel displaced by contracts under Title I or Self-Governance under Title V.
Yes, the Secretary may increase the funds required under the funding agreement. However, the Self-Governance Tribe and the Secretary must agree to any transfer of funds to the Self-Governance Tribe unless otherwise provided for in the funding agreement.
Yes, a Self-Governance Tribe may choose to purchase from the IHS any goods and services transferred by the IHS to a Self-Governance Tribe in a compact or funding agreement. The IHS shall provide any such goods and services to the Self-Governance Tribe, on a reimbursable basis, including payment in advance with subsequent adjustment.
Yes, the Prompt Payment Act, 39 U.S.C. section 3901 et seq., applies to the transfer of all funds due under a compact or funding agreement authorized pursuant to Title V. See also § 137.76 through 137.78 and 137.341(f).
Yes, pursuant to section 508(h) of the Act [25 U.S.C. 458aaa-7(h)], a Self-Governance Tribe may retain and spend interest earned on any funds paid under a compact or funding agreement.
A Self-Governance Tribe is under a duty to invest and manage the funds as a prudent investor would, in light of the purpose, terms, distribution requirements, and provisions in the compact or funding agreement and Title V. This duty requires the exercise of reasonable care, skill, and caution, and is to be applied to investments not in isolation but in the context of the investment portfolio and as a part of an overall investment strategy, which should incorporate risk and return objectives reasonably suitable to the Self-Governance Tribe. In making and implementing investment decisions, the Self-Governance Tribe has a duty to diversify the investments unless, under the circumstances, it is prudent not to do so. In addition, the Self-Governance Tribe must:
(a) Conform to fundamental fiduciary duties of loyalty and impartiality;
(b) Act with prudence in deciding whether and how to delegate authority and in the selection and supervision of agents; and
(c) Incur only costs that are reasonable in amount and appropriate to the investment responsibilities of the Self-Governance Tribe.
Yes, pursuant to section 508(i) of the Act, a Self-Governance Tribe may carryover from one year to the next any funds that remain at the end of the funding agreement.
All Medicare, Medicaid, or other program income earned by a Self-Governance Tribe shall be treated as supplemental funding to that negotiated in the funding agreement. The Self-Governance Tribe may retain all such income and expend such funds in the current year or in future years except to the extent that the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.) provides otherwise for Medicare and Medicaid receipts. Such funds shall not result in any offset or reduction in the amount of funds the Self-Governance Tribe is authorized to receive under its funding agreement in the year the program income is received or for any subsequent fiscal year.
No, if a Self-Governance Tribe believes that the total amount of funds provided for a specific PSFA in a compact or funding agreement is insufficient, the Self-Governance Tribe must provide reasonable written notice of such insufficiency to the Secretary. If the Secretary does not increase the amount of funds transferred under the funding agreement in a quantity sufficient for the Self-Governance Tribe to complete the PSFA, as jointly determined by the Self-Governance Tribe and the Secretary, the Self-Governance Tribe may suspend performance of the PSFA until such time as additional funds are transferred.
Yes, at the option of a Self-Governance Tribe, a funding agreement may provide for a stable base budget, specifying the recurring funds to be transferred to a Self-Governance Tribe for a period specified in the funding agreement.
The stable base budget amount may include, at the option of the Self-Governance Tribe,
(a) Recurring funds available under section 106(a) of the Act [25 U.S.C. 450j-1] ;
(b) Recurring Tribal shares; and
(c) Any recurring funds for new or expanded PSFAs not previously assumed by the Self-Governance Tribe.
Yes, the funding agreement may include non-recurring funds, other recurring funds, and other funds the Self-Governance Tribe is entitled to include in a funding agreement that are not included in the stable base budget amount.
Stable base funding amounts are subject to adjustment:
(a) Annually only to reflect changes in Congressional appropriations by sub-sub activity excluding earmarks;
(b) By mutual agreement of the Self-Governance Tribe and the Secretary; or
(c) As a result of full or partial retrocession or reassumption.
No, the Self-Governance Tribe may provide in its funding agreement that the effective period of the stable base budget will be either longer or shorter than the term of the funding agreement.
This subpart explains the final offer process provided by the statute for resolving, within a specific timeframe, disputes that may develop in negotiation of compacts, funding agreements, or amendments thereof.
A final offer should be submitted when the Secretary and an Indian Tribe are unable to agree, in whole or in part, on the terms of a compact or funding agreement (including funding levels).
(a) A written final offer should be submitted:
(1) During negotiations to the agency lead negotiator
(2) Thereafter to the Director.
(b) The document should be separate from the compact, funding agreement, or amendment and clearly identified as a “Final Offer.”
A final offer contains a description of the disagreement between the Secretary and the Indian Tribe and the Indian Tribe's final proposal to resolve the disagreement.
The 45 day review period begins from the date the IHS receives the final offer. Proof of receipt may include a date stamp, or postal return receipt, or hand delivery.
Yes, the Secretary may request an extension of time before the expiration of the 45 day review period. The Indian Tribe may either grant or deny the Secretary's request for an extension. To be effective, any grant of extension of time must be in writing and be signed by the person authorized by the Indian Tribe to grant the extension before the expiration of the 45 day review period.
The final offer is accepted automatically by operation of law.
No, there are no exceptions to this rule if the 45 day review period or extension thereto, has expired, and the Tribe's offer is deemed accepted by operation of law.
After the Indian Tribe's final offer is accepted or deemed accepted, the terms of the Indian Tribe's final offer and any funds included therein, shall be added to the funding agreement or compact within 10 days of the acceptance or the deemed acceptance.
The Secretary may reject an Indian Tribe's final offer for one of the following reasons:
(a) the amount of funds proposed in the final offer exceeds the applicable funding level to which the Indian Tribe is entitled under the Act;
(b) the PSFA that is the subject of the final offer is an inherent Federal function that cannot legally be delegated to an Indian Tribe;
(c) the Indian Tribe cannot carry out the PSFA in a manner that would not result in significant danger or risk to the public health; or
(d) the Indian Tribe is not eligible to participate in self-governance under section 503 of the Act [25 U.S.C. 458aaa-2].
The Secretary must reject a final offer by providing written notice to the Indian Tribe based on the criteria in § 137.140 not more than 45 days after receipt of a final offer, or within a longer time period as agreed by the Self-Governance Tribe consistent with this subpart.
A significant danger or risk is determined on a case-by-case basis in accordance with section 507(c) of the Act [25 U.S.C. 458aaa-6(c)].
The Secretary must provide funds under a funding agreement in an amount equal to the amount that the Indian Tribe would have been entitled to receive under self-determination contracts under this Act, including amounts for direct program costs specified under section 106(a)(1) of the Act [25 U.S.C. 450j-1(a)(1)] and amounts for contract support costs specified under section 106(a) (2), (3), (5), and (6) of the Act [25 U.S.C. 450j-1(a)(2), (3), (5) and (6)], including any funds that are specifically or functionally related to the provision by the Secretary of services and benefits to the Indian Tribe or its members, all without regard to the organizational level within the Department where such functions are carried out.
Yes, upon receiving a final offer, the Secretary must offer any necessary technical assistance, and must share all relevant information with the Indian Tribe in order to avoid rejection of a final offer.
Yes, the Secretary must offer and, if requested by the Indian Tribe, provide additional technical assistance to overcome the stated grounds for rejection.
Yes, the Indian Tribe is entitled to appeal the decision of the Secretary, with an agency hearing on the record, and the right to engage in full discovery relevant to any issue raised in the matter. The procedures for appeals are found in subpart P of this part. Alternatively, at its option, the Indian Tribe has the right to sue pursuant to section 110 of the Act [25 U.S.C. 450m-1] in Federal district court to challenge the Secretary's decision.
Yes, subject to section 507(c)(1)(D) of the Act [25 U.S.C. 458aaa-6(c)(1)(D)].
No, appealing the decision of the Secretary does not prevent entering into the compact, funding agreement, or amendment.
With respect to any appeal, hearing or civil action, the Secretary shall have the burden of demonstrating by clear and convincing evidence the validity of the grounds for rejecting the final offer.
A final agency action shall consist of a written decision from the Department to the Indian Tribe either:
(a) By an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency in which the decision that is the subject of the appeal was made; or
(b) By an administrative judge.
Yes, self-Governance Tribes participating in self-governance under Title V must ensure that internal measures are in place to address conflicts of interest in the administration of self-governance PSFAs.
Yes, under the provisions of section 506(c) of the Act [25 U.S.C. 458aaa-5(c)], Self-Governance Tribes must undertake annual audits pursuant to the Single Audit Act, 31 U.S.C. 7501
Yes, the exceptions are described in 31 U.S.C. 7502 of the Single Audit Act.
A Self-Governance Tribe must apply the cost principles of the applicable OMB circular, except as modified by:
(a) Section 106 (k) of the Act [25 U.S.C. 450j-1],
(b) Other provisions of law, or
(c) Any exemptions to applicable OMB circulars subsequently granted by the OMB.
No, no other audit or accounting standards shall be required by the Secretary.
Any right of action or other remedy (other than those relating to a criminal offense) relating to any disallowance of costs is barred unless the Secretary provides notice of such a disallowance within 365 days from receiving any required annual agency single audit report or, for any period covered by law or regulation in force prior to enactment of the Single Agency Audit Act of 1984, any other required final audit report.
For the purpose of determining the 365 day period, an audit report is deemed received on the date of actual receipt by the Secretary, at the address specified in § 137.172, if, within 60 days after receiving the audit report, the Secretary does not give notice of a determination by the Secretary to reject the single-agency audit report as insufficient due to non-compliance with chapter 75 of title 31, United States Code or noncompliance with any other applicable law.
(a) For fiscal years ending on or before June 30, 1996, the audit report must be sent to: National External Audit Review Center, Lucas Place Room 514, 323 W. 8th St., Kansas City, MO 64105.
(b) For fiscal years, beginning after June 30, 1996, the audit report must be sent to: Single Audit Clearinghouse, 1201 E. 10th St., Jeffersonville, IN 47132.
Yes, the Self-Governance Tribe should also send the audit report to: National External Audit Review Center, Lucas Place Room 514, 323 W. 8th St., Kansas City, MO 64105.
Yes, the notice must set forth the right of appeal and hearing to the Interior Board of Contract Appeals, pursuant to section 110 of the Act [25 U.S.C. 450m-1].
Yes. Tribes are required to maintain records and provide Federal agency access to those records as provided in § 137.177.
No, except to the extent that a Self-Governance Tribe specifies otherwise in its compact or funding agreement, the records of the Self-Governance Tribe shall not be considered Federal records for purposes of chapter 5 of title 5, United States Code.
Yes, after 30 days advance written notice from the Secretary, the Self-Governance Tribe must provide the Secretary with reasonable access to such records to enable the Department to meet its minimum legal recordkeeping system requirements under sections 3101 through 3106 of title 44 United States Code.
Yes, at the option of a Self-Governance Tribe, patient records may be stored at Federal Records Centers to the same extent and in the same manner as other Department patient records in accordance with section 105(o) of the Act [25 U.S.C. 450j(o)].
Yes, a Self-Governance Tribe may make agreements with the Federal Records Centers regarding disclosure and release of the patient records stored pursuant to § 137.178.
Yes, a Tribe must consider the potential application of Tribal, Federal and state law and regulations that may apply to requests for access to Tribal patient records, such as the provisions 42 CFR 2.1-2.67 pertaining to records regarding drug and/or alcohol treatment.
Yes, a Self-Governance Tribe may redesign or consolidate PSFAs included in a funding agreement and reallocate or redirect funds for such PSFAs in any manner which the Self-Governance Tribe deems to be in the best interest of the health and welfare of the Indian community being served, only if the redesign or consolidation does not have the effect of denying eligibility for services to population groups otherwise eligible to be served under applicable Federal law.
For the period for which, and to the extent to which, funding is provided under the compact or funding agreement, the Self-Governance Tribe is not entitled to contract with the Secretary for the same funds or PSFA under section 102 of the Act [25 U.S.C. 450f]. Such Self-Governance Tribe is eligible for new programs on the same basis as other Indian Tribes.
Yes, compacts or funding agreements negotiated between the Secretary and a Self-Governance Tribe must include a provision that requires the Self-Governance Tribe to report on health status and services delivery. These reports may only impose minimal burdens on the Self-Governance Tribes.
Tribal reports enable the Secretary to prepare reports required under Title V and to develop the budget request. The reporting requirements are not intended as a quality assessment or monitoring tool, although such provision may be included at the option of the Self-Governance Tribe. Under no circumstances will the reporting requirement include any confidential, proprietary or commercial information. For example, while staffing levels may be a part of a report, pay levels for the staff are considered confidential between the Self-Governance Tribe and the employee.
Reports will be derived from existing minimal data elements currently collected by Self-Governance Tribes, and may include patient demographic and workload data. Not less than 60 days prior to the start of negotiations or a mutually agreed upon timeframe, the IHS will propose a list of recommended minimal data elements, along with justification for their inclusion, to be used as a basis for negotiating these requirements into the Self-Governance Tribe's compact or funding agreement.
Yes, in order to advance Indian health advocacy efforts, each Self-Governance Tribe will be encouraged to participate, at its option, in national IHS data reporting activities such as Government Performance Results Act, epidemiologic and surveillance reporting.
IHS will work with representatives of Self-Governance Tribes, in coordination with the Tribal Self Governance Advisory Committee (TSGAC), to develop a mutually-defined annual voluntary uniform subset of data that is consistent with Congressional intent, minimizes reporting burdens, and responds to the needs of the Self-Governance Tribe.
No, to the extent that specific resources are available or have not otherwise been provided to Self-Governance Tribes for this purpose, and if the Self-Governance Tribes choose to participate, the IHS will provide resources, hardware, software, and technical assistance to the Self-Governance Tribes to facilitate data gathering to ensure data consistency and integrity under this voluntary effort.
This information will be used to comply with sections 513 [25 U.S.C. 458aaa-12] and 514 [25 U.S.C. 458aaa-13] of the Act as well as to assist IHS in advocating for the Indian health system, budget formulation, and other reporting required by statute, development of partnerships with other organizations that benefit the health status of Indian Tribes, and sharing of best practices.
Yes, reporting requirements are subject to the Secretary providing specific funds for this purpose in the funding agreement.
To the extent that PSFAs carried out by Self-Governance Tribes under Title V reduce the administrative or other responsibilities of the Secretary with respect to the operation of Indian programs and result in savings that have not otherwise been included in the amount of Tribal shares and other funds determined under section 508(c) of the Act [25 U.S.C. 458aaa-7(c)], the Secretary must make such savings available to the Self-Governance Tribes, for the provision of additional services to program beneficiaries in a manner equitable to directly served, contracted, and compacted programs.
The annual report prepared pursuant to section 514(b)(2) [25 U.S.C. 458aaa-13(b)(2)] of the Act must specifically identify any such savings.
(a) For government-furnished real and personal property made available to a Self-Governance Tribe, the Self-Governance Tribe must take title to all real or personal property unless the Self-Governance Tribe requests that the United States retain the title.
(b) For government-furnished personal property made available to a Self-Governance Tribe:
(1) The Secretary, in consultation with each Self-Governance Tribe, must develop a list of the property used in a compact, funding agreement, or construction project agreement.
(2) The Self-Governance Tribe must indicate any items on the list to which the Self-Governance Tribe wants the Secretary to retain title.
(3) The Secretary must provide the Self-Governance Tribe with any documentation needed to transfer title to the remaining listed property to the Self-Governance Tribe.
(c) For government-furnished real property made available to a Self-Governance Tribe:
(1) The Secretary, in consultation with the Self-Governance Tribe, must develop a list of the property furnished for use in a compact, funding agreement, or construction project agreement.
(2) The Secretary must inspect any real property on the list to determine the presence of any hazardous substance activity, as defined in 41 CFR 101-47.202-2(b)(10).
(3) The Self-Governance Tribe must indicate on the list to the Secretary any items of real property to which the Self-Governance Tribe wants the Secretary to retain title and those items of property to which the Self-Governance Tribe wishes to obtain title. The Secretary must take such steps as necessary to transfer title to the Self-Governance Tribe those items of real property which the Self-Governance Tribe wishes to acquire.
Yes, funds provided under compacts, funding agreements, or grants made pursuant to Title V may be treated as non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program.
Yes, regulations governing FTCA coverage are set out at 25 CFR Part 900, Subpart M.
A Self-Governance Tribe may request a waiver of regulation(s) promulgated under section 517 of the Act [25 U.S.C. 458aaa-16] or under the authorities specified in section 505(b) of the Act [25 U.S.C. 458aaa-4(b)] for a compact or funding agreement entered into with the IHS under Title V.
A Self-Governance Tribe may request a waiver by submitting a written request to the Secretary identifying the applicable Federal regulation(s) sought to be waived and the basis for the request.
The Secretary must either approve or deny the requested waiver in writing within 90 days after receipt by the Secretary.
A denial may be made only upon a specific finding by the Secretary that identified language in the regulation may not be waived because such waiver is prohibited by Federal law.
The waiver request is deemed approved.
Yes, the Secretary's decision on a waiver request is final for the Department.
The decision may not be appealed under these regulations but may be appealed by the Self-Governance Tribe in Federal Court under applicable law.
Yes, an Indian Tribe may fully or partially withdraw from a participating inter-Tribal consortium or Tribal organization its share of any PSFAs included in a compact or funding agreement.
A withdrawal becomes effective within the time frame specified in the resolution that authorizes withdrawal from the participating Tribal organization or inter-Tribal consortium. In the absence of a specific time frame set forth in the resolution, such withdrawal becomes effective on
(a) The earlier of 1 year after the date of submission of such request, or the date on which the funding agreement expires; or
(b) Such date as may be mutually agreed upon by the Secretary, the withdrawing Indian Tribe, and the participating Tribal organization or inter-Tribal consortium that has signed the compact or funding agreement on behalf of the withdrawing Indian Tribe, inter-Tribal consortium, or Tribal organization.
When an Indian Tribe eligible to enter into a contract under Title I or a compact or funding agreement under Title V fully or partially withdraws from a participating inter-Tribal consortium or Tribal organization, and has proposed to enter into a contract or compact and funding agreement covering the withdrawn funds:
(a) The withdrawing Indian Tribe is entitled to its Tribal share of funds supporting those PSFAs that the Indian Tribe will be carrying out under its own contract or compact and funding agreement (calculated on the same basis as the funds were initially allocated in the funding agreement of the inter-Tribal consortium or Tribal organization); and
(b) the funds referred to in paragraph (a) of this section must be transferred from the funding agreement of the inter-Tribal consortium or Tribal organization, on the condition that the provisions of sections 102 [25 U.S.C. 450f] and 105(i) of the Act [25 U.S.C. 450j], as appropriate, apply to the withdrawing Indian Tribe.
All funds not obligated by the inter-Tribal consortium or Tribal organization associated with the withdrawing Indian Tribe's returned PSFAs, less close out costs, shall be returned by the inter-Tribal consortium or Tribal organization to the IHS for operation of the PSFAs included in the withdrawal.
Yes, if the withdrawing Indian Tribe elects to operate PSFAs carried out under a compact or funding agreement under Title V through a contract under Title I, the resulting contract is considered a mature contract under section 4(h) of the Act [25 U.S.C. 450b(h)] at the option of the Indian Tribe.
Retrocession means the return by a Self-Governance Tribe to the Secretary of PSFAs, that are included in a compact or funding agreement, for any reason, before the expiration of the term of the compact or funding agreement.
The Self-Governance Tribe submits a written notice to the Director of its intent to retrocede. The notice must specifically identify those PSFAs being retroceded. The notice may also include a proposed effective date of the retrocession.
Unless the request for retrocession is rescinded, the retrocession becomes effective within the timeframe specified by the parties in the compact or funding agreement. In the absence of a specification, the retrocession becomes effective on:
(a) The earlier of 1 year after:
(1) The date of submission of the request, or
(2) The date on which the funding agreement expires; or
(b) Whatever date is mutually agreed upon by the Secretary and the retroceding Self-Governance Tribe.
A retrocession request shall not negatively affect:
(a) Any other contract or compact to which the retroceding Self-Governance Tribe is a party;
(b) Any other contracts or compacts the retroceding Self-Governance Tribe may request; and
(c) Any future request by such Self-Governance Tribe or an Indian Tribe to compact or contract for the same program.
No, the Secretary shall provide no less than the same level of funding that would have been available if there had been no retrocession.
Any funds not obligated by the Self-Governance Tribe and associated with the Self-Governance Tribe's returned PSFAs, less close out costs, must be returned by the Self-Governance Tribe to IHS for operation of the PSFA's associated with the compact or funding agreement from which the Self-Governance Tribe retroceded in whole or in part.
On the effective date of any retrocession, the retroceding Self-Governance Tribe, shall, at the option of the Secretary, deliver to the Secretary all requested property and equipment provided by the Secretary under the compact or funding agreement, to the extent used to carry out the retroceded PSFAs, which at the time of retrocession has a per item current fair market value, less the cost of improvements borne by the Self-Governance Tribe in excess of $5,000 at the time of the retrocession.
Reassumption means rescission by the Secretary without consent of the Self-Governance Tribe of PSFAs and associated funding in a compact or funding agreement and resuming responsibility to provide such PSFAs.
(a) Subject to the steps in § 137.257, the Secretary may reassume a program, service, function, or activity (or portion thereof) and associated funding if the Secretary makes a specific finding relative to that PSFA of :
(1) Imminent endangerment of the public health caused by an act or omission of the Self-Governance Tribe, and the imminent endangerment arises out of a failure to carry out the compact or funding agreement; or
(2) Gross mismanagement with respect to funds transferred to the Self-Governance Tribe by a compact or funding agreement, as determined by the Secretary, in consultation with the Inspector General, as appropriate.
(b) Immediate reassumption may occur under additional requirements set forth in § 137.261.
Except as provided in § 137.261 for immediate reassumption, prior to a reassumption becoming effective, the Secretary must:
(a) Notify the Self-Governance Tribe in writing by certified mail of the details of findings required under § 137.256(a)(1) and (2);
(b) Request specified corrective action within a reasonable period of time, which in no case may be less than 45 days;
(c) Offer and provide, if requested, the necessary technical assistance and advice to assist the Self-Governance Tribe to overcome the conditions that led to the findings described under (a); and
(d) Provide the Self-Governance Tribe with a hearing on the record as provided under Subpart P of this part.
Yes, at the Self-Governance Tribe's request, the Secretary must provide a hearing on the record prior to or in lieu of the corrective action period identified in § 137.257(b).
(a) The Secretary shall provide a second written notice by certified mail to the Self-Governance Tribe served by the compact or funding agreement that the compact or funding agreement will be rescinded, in whole or in part.
(b) The second notice shall include:
(1) The intended effective date of the reassumption;
(2) The details and facts supporting the intended reassumption; and
(3) Instructions that explain the Indian Tribe's right to a formal hearing within 30 days of receipt of the notice.
Except as provided in § 137.261, no PSFA may be reassumed by the Secretary until 30 days after the final resolution of the hearing and any subsequent appeals to provide the Self-Governance Tribe with an opportunity
Yes, the Secretary may immediately reassume operation of a program, service, function, or activity (or portion thereof) and associated funding upon providing to the Self-Governance Tribe written notice in which the Secretary makes a finding:
(a) of imminent substantial and irreparable endangerment of the public health caused by an act or omission of the Indian Tribe; and
(b) the endangerment arises out of a failure to carry out the compact or funding agreement.
If the Secretary immediately reassumes a PSFA, the Secretary must provide the Self-Governance Tribe with a hearing under Subpart P of this part not later than 10 days after such reassumption, unless the Self-Governance Tribe and the Secretary agree to an extension.
Yes, the Secretary may make a grant for the purpose of obtaining technical assistance as provided in section 103 of the Act [25 U.S.C. 458aaa-h].
On the effective date of any reassumption, the Self-Governance Tribe, shall, at the option of the Secretary and only to the extent requested by the Secretary, deliver to the Secretary property and equipment provided by the Secretary under the compact or funding agreement, to the extent the property was used to directly carry out the reassumed program, service, function, or activity (or portion thereof), provided that at the time of reassumption the property has a per item current fair market value, less the cost of improvements borne by the Self-Governance Tribe, in excess of $5,000 at the time of the reassumption.
Yes, a Tribe may be reimbursed for actual and reasonable close out costs incurred after the effective date of reassumption.
This subpart covers IHS construction projects carried out under section 509 of the Act [25 U.S.C. 458aaa-8].
Construction projects are separately defined in Title V and are subject to a separate proposal and review process. Provisions of a construction project agreement and this subpart shall be liberally construed in favor of the Self-Governance Tribe.
Self-Governance Tribes also have the option of performing IHS construction projects under a variety of other legal authorities, including but not limited to Title I of the Act, the Indian Health Care Improvement Act, Public Law 94-437, and Public Law 86-121. This subpart does not cover projects constructed pursuant to agreements entered into under these authorities.
IHS construction PSFAs are a combination of construction projects as defined in § 137.280 and construction programs.
No, except as provided in § 137.275, this subpart does not cover construction programs such as the:
(a) Maintenance and Improvement Program;
(b) Construction program functions; and,
(c) Planning services and construction management services.
Yes, Self-Governance Tribes may choose to assume construction programs in a construction project agreement, in a funding agreement, or in a combination of the two. These programs may include the following:
(a) Maintenance and improvement program;
(b) Construction program functions; and
(c) Planning services and construction management services.
ALJ means administrative law judge.
APA means Administrative Procedures Act, 5 U.S.C. 701—706.
Budget means a statement of the funds required to complete the scope of work in a construction project agreement. For cost reimbursement agreements, budgets may be stated using broad categories such as planning, design, construction, project administration, and contingency. For fixed price agreements, budgets may be stated as lump sums, unit cost pricing, or a combination thereof.
Categorical exclusion means a category of actions that do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.
CEQ means Council on Environmental Quality in the Office of the President.
Construction management services (CMS) means activities limited to administrative support services; coordination; and monitoring oversight of the planning, design, and construction process. CMS activities typically include:
(1) Coordination and information exchange between the Self-Governance Tribe and the Federal Government;
(2) Preparation of a Self-Governance Tribe's project agreement; and
(3) A Self-Governance Tribe's subcontract scope of work identification and subcontract preparation, and competitive selection of construction contract subcontractors.
Construction phase is the phase of a construction project agreement during which the project is constructed, and includes labor, materials, equipment and services necessary to complete the work, in accordance with the construction project agreement.
Construction project means:
(1) An organized noncontinuous undertaking to complete a specific set of predetermined objectives for the planning, environmental determination, design, construction, repair, improvement, or expansion of buildings or facilities described in a project agreement, and
(2) Does not include construction program administration and activities described in sections 4(m)(1) through (3) of the Act [25 U.S.C. 4b(m)(1) through (3)], that may otherwise be included in a funding agreement under section 505 of the Act [25 U.S.C. 458aaa-4].
Construction project agreement means a negotiated agreement between the Secretary and a Self-Governance Tribe, that at a minimum:
(1) Establishes project phase start and completion dates;
(2) Defines a specific scope of work and standards by which it will be accomplished;
(3) Identifies the responsibilities of the Self-Governance Tribe and the Secretary;
(4) Addresses environmental considerations;
(5) Identifies the owner and operations and maintenance entity of the proposed work;
(6) Provides a budget;
(7) Provides a payment process; and
(8) Establishes the duration of the agreement based on the time necessary to complete the specified scope of work, which may be 1 or more years.
Design phase is the phase of a construction project agreement during which project plans, specifications, and other documents are prepared that are used to build the project. Site investigation, final site selection activities and environmental review and determination activities are completed in this phase if not conducted as a part of the planning phase.
Maintenance and improvement program:
(1) As used in this subpart means the program that provides funds for eligible facilities for the purpose of:
(i) Performing routine maintenance;
(ii) Achieving compliance with accreditation standards;
(iii) Improving and renovating facilities;
(iv) Ensuring that Indian health care facilities meet existing building codes and standards; and
(v) Ensuring compliance with public law building requirements.
(2) The maintenance and improvement program is comprised of routine maintenance and repair funding and project funding. Typical maintenance and improvement projects have historically been funded out of regional or national project pools and may include, but are not limited to, total replacement of a heating or cooling system, remodel of a medical laboratory, removal of lead based paint, abatement of asbestos and abatement of underground fuel storage tanks. Maintenance and repair program funding provided under a funding agreement is not covered under this subpart.
NEPA means the National Environmental Policy Act of 1969 [42 U.S.C. 4321
NHPA means the National Historic Preservation Act [16 U.S.C. 470
Planning phase is the phase of a construction project agreement during which planning services are provided.
Planning services may include performing a needs assessment, completing and/or verifying master plans, developing justification documents, conducting pre-design site investigations, developing budget cost estimates, conducting feasibility studies as needed, conducting environmental review activities and justifying the need for the project.
SHPO means State Historic Preservation Officer.
Scope of work or specific scope of work means a brief written description of the work to be accomplished under the construction project agreement, sufficient to confirm that the project is consistent with the purpose for which the Secretary has allocated funds.
THPO means Tribal Historic Preservation Officer.
Yes, under section 509 of the Act [25 U.S.C. 458aaa-8], Self-Governance Tribes must assume all Federal responsibilities under the NEPA of 1969 [42 U.S.C. 4321
No, while Self-Governance Tribes are required to assume Federal environmental responsibilities for projects in place of the Secretary, Self-Governance Tribes do not thereby become Federal agencies. However, because Self-Governance Tribes are assuming the responsibilities of the Secretary for the purposes of performing these Federal environmental responsibilities, Self-Governance Tribes will be considered the equivalent of Federal agencies for certain purposes as set forth in this subpart.
The NEPA is a procedural law that requires Federal agencies to follow established environmental review procedures, which include reviewing and documenting the environmental impact of their actions. NEPA establishes a comprehensive policy for protection and enhancement of the environment by the Federal Government; creates the Council on Environmental Quality in the Office of the President; and directs Federal agencies to carry out the policies and procedures of the Act. CEQ regulations (40 CFR 1500-1508) establish three levels of environmental review: categorical exclusions, environmental assessments, and environmental impact statements.
The NHPA requires Federal agencies to take into account the effects of their undertakings, such as construction projects, on properties covered by the NHPA, such as historic properties, properties eligible for listing on the National Register of Historic Places, or properties that an Indian Tribe regards as having religious and/or cultural importance. Section 106 of the NHPA [16 U.S.C. 470f] requires Federal agencies to afford the Advisory Council on Historic Preservation, acting through the SHPO or the THPO, a reasonable opportunity to comment on such undertakings.
The Advisory Council on Historic Preservation has defined a Federal undertaking in 36 CFR 800.16(y) as a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.
(a) Depending upon the nature and the location of the construction project, environmental laws related to NEPA and NHPA may include:
(1) Archaeological and Historical Data Preservation Act [16 U.S.C. 469];
(2) Archeological Resources Protection Act [16 U.S.C. 470aa];
(3) Clean Air Act [42 U.S.C. 7401];
(4) Clean Water Act [33 U.S.C. 1251];
(5) Coastal Barrier Improvement Act [42 U.S.C. 4028 and 16 U.S.C. Sec. 3501];
(6) Coastal Barrier Resources Act [16 U.S.C. 3501];
(7) Coastal Zone Management Act [16 U.S.C. 1451];
(8) Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601];
(9) Endangered Species Act [16 U.S.C. 1531
(10) Farmland Protection Policy Act [7 U.S.C. 4201
(11) Marine Protection, Research, and Sanctuaries Act [33 U.S.C. 1401-1445; 16 U.S.C. 1431-1447F; 33 U.S.C. 2801-2805];
(12) National Historic Preservation Act [16 U.S.C. 470
(13) National Trails System Act [16 U.S.C. 1241];
(14) Native American Graves Protection and Repatriation Act [25 U.S.C. 3001];
(15) Noise Control Act [42 U.S.C.4901];
(16) Resource Conservation and Recovery Act [42 U.S.C. 6901];
(17) Safe Drinking Water Act [42 U.S.C. 300F];
(18) Toxic Substance Control Act [15 U.S.C. 2601];
(19) Wild and Scenic Rivers Act [16 U.S.C. 1271]; and
(20) Wilderness Act [16 U.S.C. 1131].
(b) This section provides a list of environmental laws for informational purposes only and does not create any legal rights or remedies, or imply private rights of action.
Yes, but not under section 509 of the Act [25 U.S.C. 458aaa-8]. Self-Governance Tribes may otherwise elect to perform construction projects, or phases of construction projects, under other legal authorities (see § 137.272).
Self-Governance Tribes assume environmental responsibilities by:
(a) Adopting a resolution or taking an equivalent Tribal action which:
(1) Designates a certifying officer to represent the Self-Governance Tribe and to assume the status of a responsible Federal official under NEPA, NHPA, and related provisions of law; and
(2) Accepts the jurisdiction of the Federal court, as provided in § 137.310 and § 137.311 for purposes of enforcement of the Federal environmental responsibilities assumed by the Self-Governance Tribe; and
(b) Entering into a construction project agreement under section 509 of the Act [25 U.S.C. 458aaa-8].
No, the Self-Governance Tribe may adopt a single resolution or take equivalent Tribal action to assume environmental responsibilities for a single project, multiple projects, a class of projects, or all projects performed under section 509 of the Act [25 U.S.C. 458aaa-8].
(a) Most IHS construction projects normally do not have a significant impact on the environment, and therefore do not require environmental impact statements (EIS). Under current IHS procedures, an environmental review is performed on all construction projects. During the IHS environmental review process, the following activities may occur:
(1) Consult with appropriate Tribal, Federal, state, and local officials and interested parties on potential environmental effects;
(2) Document assessment of potential environmental effects; (IHS has developed a form to facilitate this process.)
(3) Perform necessary environmental surveys and inventories;
(4) Consult with the Advisory Council on Historic Preservation, acting through the SHPO or THPO, to ensure compliance with the NHPA;
(5) Determine if extraordinary or exceptional circumstances exist that would prevent the project from meeting the criteria for categorical exclusion from further environmental review under NEPA, or if an environmental assessment is required;
(6) Obtain environmental permits and approvals; and
(7) Identify methods to avoid or mitigate potential adverse effects;
(b) This section is for informational purposes only and does not create any legal rights or remedies, or imply private rights of action.
Yes, Self-Governance Tribes may develop their own environmental review process or adopt the procedures of the IHS or the procedures of another Federal agency.
Self-Governance Tribes comply with NEPA and the NHPA by adopting and following:
(a) their own environmental review procedures;
(b) the procedures of the IHS; and/or
(c) the procedures of another Federal agency.
No, the Federal agency is responsible for ensuring its own policies and procedures meet the requirements of NEPA, NHPA, and related environmental laws, not the Self-Governance Tribe.
No, but Self-Governance Tribes may at their option, choose to voluntarily comply with Executive Orders. For facilities where ownership will vest with the Federal Government upon completion of the construction, Tribes and the Secretary may agree to include the goals and objectives of Executive Orders in the codes and standards of the construction project agreement.
Yes, funds are available:
(a) for project-specific environmental costs through the construction project agreement; and
(b) for environmental review program costs through a funding agreement and/or a construction project agreement.
Yes, the Secretary must transfer not less than the amount of funds that the Secretary would have otherwise used to carry out the Federal environmental responsibilities assumed by the Self-Governance Tribe.
(a) The Self-Governance Tribe and the Secretary should work together during the initial stages of project development to identify program and project related costs associated with carrying out environmental responsibilities for proposed projects. The goal in this process is to identify the costs associated with all foreseeable environmental review activities.
(b) If unforeseen environmental review and compliance costs are identified during the performance of the construction project, the Self-Governance Tribe or, at the request of the Self-Governance Tribe, the Self-Governance Tribe and the Secretary (with or without amendment as required by § 137.363) may do one or more of the following:
(1) Mitigate adverse environmental effects;
(2) Alter the project scope of work; and/or
(3) Add additional program and/or project funding, including seeking supplemental appropriations.
(a) Yes, start-up costs are available as provided in section 508(c) of the Act [25 U.S.C. 458aaa-7(c)]. During the initial year that these responsibilities are assumed, the amount required to be paid under section 106(a)(2) of the Act [25 U.S.C. 450j-1(a)(2)] must include startup costs consisting of the reasonable costs that have been incurred or will be incurred on a one-time basis pursuant to the agreement necessary:
(1) To plan, prepare for, and assume operation of the environmental responsibilities; and
(2) To ensure compliance with the terms of the agreement and prudent management.
(b) Costs incurred before the initial year that the agreement is in effect may not be included in the amount required to be paid under section 106(a)(2) of the Act [25 U.S.C. 450j-1(a)(2)] if the Secretary does not receive a written notification of the nature and extent of the costs prior to the date on which such costs are incurred.
Yes, Self-Governance Tribes may use construction program and project funds for training and program development. Training and program development funds may also be available from other Federal agencies, such as the Environmental Protection Agency and the National Park Service, state and local governments, and private organizations.
Yes, Self-Governance Tribes may “buy back” project related services in their construction project agreement, including design and construction engineering, and environmental compliance services from the IHS in accordance with Section 508(f) of the Act [25 U.S.C. 458aaa-7(f)] and § 137.95, subject to the availability of the IHS's capacity to conduct the work.
Yes, Self-Governance Tribes assuming Federal environmental responsibilities for construction projects under section 509 of the Act [25 U.S.C. 458aaa-8] are entitled to receive equal consideration, on the same basis as any Federal agency, for lead, cooperating, and joint lead agency status. For informational purposes, the terms “lead,” “cooperating,” and “joint lead agency” are defined in the CEQ regulations at 40 CFR 1508.16, 1508.5, and 1501.5 respectively.
Self-Governance Tribes may be recognized as having lead, cooperating, or joint lead agency status through funding or other agreements with other agencies. To the extent that resources are available, the Secretary will encourage and facilitate Federal, state, and local agencies to enter into agreements designating Tribes as lead, cooperating, or joint lead agencies for environmental review purposes.
(a) All environmental responsibilities for Federal actions not directly related to construction projects assumed by Tribes under section 509 of the Act [25 U.S.C. 458aaa-8] remain with the Secretary. Federal agencies, including the IHS, retain responsibility for ensuring their environmental review procedures meet the requirements of NEPA, NHPA and related provisions of law, as called for in § 137.297.
(b) The Secretary will provide information updating and changing IHS agency environmental review policy and procedures to all Self-Governance Tribes implementing a construction project agreement, and to other Indian Tribes upon request. If a Self-Governance Tribe participating under section 509 of the Act [25 U.S.C. 458aaa-8] does not wish to receive this information, it must notify the Secretary in writing. As resources permit, at the request of the Self-Governance Tribe, the Secretary will provide technical assistance to the Self-governance tribe to assist the Self-governance Tribe in carrying out Federal environmental responsibilities.
No, the Secretary does not have any enforcement authority for Federal environmental responsibilities assumed by Tribes under section 509 of the Act [25 U.S.C. 458aaa-8].
NEPA and NHPA obligations are typically enforced by interested parties who may file lawsuits against Federal agencies alleging that the agencies have not complied with their legal obligations under NEPA and NHPA. These lawsuits may only be filed in Federal court under the provisions of the APA, 5 U.S.C. 701-706. Under the APA, a Federal judge reviews the Federal agency's actions based upon an administrative record prepared by the Federal agency. The judge gives appropriate deference to the agency's decisions and does not substitute the court's views for those of the agency. Jury trials and civil discovery are not permitted in APA proceedings. If a Federal agency has failed to comply with NEPA or NHPA, the judge may grant declaratory or injunctive relief to
Yes, but only as provided in this section. Unless Self-Governance Tribes consent to the jurisdiction of a court, Self-Governance Tribes are immune from civil lawsuits. Self-Governance Tribes electing to assume Federal environmental responsibilities under section 509 of the Act [25 U.S.C. 458aaa-8] must provide a limited waiver of sovereign immunity solely for the purpose of enforcing a Tribal certifying officer's environmental responsibilities, as set forth in this subpart. Self-Governance Tribes are not required to waive any other immunity.
(a) Yes, Section 509(a)(2) of the Act [25 U.S.C. 458aaa-8(a)(2)] only requires that the waiver permit a civil enforcement action to be brought against the Tribal certifying officer in his or her official capacity in Federal district court for declaratory and injunctive relief in a procedure that is substantially equivalent to an APA enforcement action against a Federal agency. Self-Governance Tribes are not required to subject themselves to suit in their own name, to submit to trial by jury or civil discovery, or to waive immunity for money damages, attorneys fees, or fines.
(b) Self-Governance Tribes may base the grant of a limited waiver under this subpart on the understanding that:
(1) Judicial review of the Tribal certifying official's actions are based upon the administrative record prepared by the Tribal official in the course of performing the Federal environmental responsibilities; and
(2) Actions and decisions of the Tribal certifying officer will be granted deference on a similar basis as Federal officials performing similar functions.
Only the designated Tribal certifying officer acting in his or her official capacity may be sued. Self-Governance Tribes and other Tribal officials are not proper defendants in lawsuits brought under section 509(a)(2) of the Act [25 U.S.C. 458aaa-8(a)(2)].
Yes, before developing a new project resource allocation methodology and application process the Secretary must consult with all Indian Tribes. In addition, before spending any funds for planning, design, construction, or renovation projects, whether subject to a competitive application and ranking process or not, the Secretary must consult with any Indian Tribe that would be significantly affected by the expenditure to determine and honor Tribal preferences whenever practicable concerning the size, location, type, and other characteristics of the project.
In addition to the requirements contained in section 513 of the Act [25 U.S.C. 458aaa-12], Indian Tribes and the Secretary are encouraged to jointly identify health facility and sanitation needs at the earliest possible date for IHS budget formulation. In developing budget justifications for specific projects to be proposed to Congress, the Secretary shall follow the preferences of the affected Indian Tribe(s) to the greatest extent feasible concerning the size, location, type, and other characteristics of the project.
(a) Yes, within 30 days after the Secretary's allocation of funds for planning phase, design phase, or construction phase activities for a specific project, the Secretary shall notify, by registered mail with return receipt in order to document mailing, the Indian Tribe(s) to be benefitted by the availability of the funds for each phase of a project. The Secretarial notice of fund allocation shall offer technical assistance in the preparation of a construction project proposal.
(b) The Secretary shall, within 30 days after receiving a request from an Indian Tribe, furnish the Indian Tribe with all information available to the Secretary about the project including, but not limited to: construction drawings, maps, engineering reports, design reports, plans of requirements, cost estimates, environmental assessments, or environmental impact reports and archeological reports.
(c) An Indian Tribe is not required to request this information prior to either submitting a notification of intent or a construction project proposal.
(d) The Secretary shall have a continuing responsibility to furnish information to the Indian Tribes.
(a) A Self-Governance Tribe may start the process of developing a construction project agreement by:
(1) Notifying the Secretary in writing that the Self-Governance Tribe wishes to enter into a pre-agreement negotiation phase as set forth in section 105(m)(3) of the Act [25 U.S.C. 450j(m)(3)]; or
(2) Submitting a proposed construction project agreement. This proposed agreement may be the final proposal, or it may be a draft for consideration and negotiation, or
(3) A combination of the actions described in paragraphs (a)(1) and (2) of this section.
(b) Upon receiving a Self-Governance Tribe's request to enter into a pre-negotiation phase the Secretary shall take the steps outlined in section 105(m)(3) of the Act [25 U.S.C. 450j(m)(3)].
A construction project proposal must contain all of the required elements of a construction project agreement as defined in § 137.280. In addition to these minimum requirements, Self-Governance Tribes may propose additional items.
Yes, a Self-Governance Tribe may include multiple projects in a single construction project agreement proposal or may add additional approved projects by amendment(s) to an existing construction project agreement.
(a) No, the Self-Governance Tribe and the Secretary must agree upon and specify appropriate building codes and architectural and engineering standards (including health and safety) which must be in conformity with nationally recognized standards for comparable projects.
(b) The Secretary may provide, or the Self-Governance Tribe may request, Federal construction guidelines and
The construction project agreement must include:
(a) Identification of the Tribal certifying officer for environmental review purposes,
(b) Reference to the Tribal resolution or equivalent Tribal action appointing the Tribal certifying officer and accepting the jurisdiction of the Federal court for enforcement purposes as provided in §§ 137.310 and 137.311.
(c) Identification of the environmental review procedures adopted by the Self-Governance Tribe, and
(d) An assurance that no action will be taken on the construction phase of the project that would have an adverse environmental impact or limit the choice of reasonable alternatives prior to making an environmental determination in accordance with the Self-Governance Tribe's adopted procedures.
The Self-Governance Tribe may submit a final construction project proposal to the Secretary. No later than 30 days after the Secretary receives the final construction project proposal, or within a longer time agreed to by the Self-Governance Tribe in writing, the Secretary shall review and make a determination to approve or reject the construction project proposal in whole or in part.
No, the Secretary may not reject a final construction project proposal based on a determination of Tribal capacity or capability.
(a) The only basis for rejection of project activities in a final construction project proposal are:
(1) The amount of funds proposed in the final construction project proposal exceeds the applicable funding level for the construction project as determined under sections 508(c) [25 U.S.C. 458aaa-7(c)] and 106 of the Act [25 U.S.C. 450j-1].
(2) The final construction project proposal does not meet the minimum content requirements for construction project agreements set forth in section 501(a)(2) of the Act [25 U.S.C. 458aaa(a)(2)]; and
(3) The final construction project proposal on its face clearly demonstrates that the construction project cannot be completed as proposed.
(b) For construction programs proposed to be included in a construction project agreement, the Secretary may also reject that portion of the proposal that proposes to assume an inherently Federal function that cannot legally be delegated to the Self-Governance Tribe.
Whenever the Secretary rejects a final construction project proposal in whole or in part, the Secretary must:
(a) Send the Self-Governance Tribe a timely written notice of rejection that shall set forth specific finding(s) that clearly demonstrates, or that is supported by controlling legal authority supporting the rejection;
(b) Within 20 days, provide all documents relied on in making the rejection decision to the Self-Governance Tribe;
(c) Provide assistance to the Self-Governance Tribe to overcome any objections stated in the written notice of rejection;
(d) Provide the Self-Governance Tribe with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity for appeal of the decision to reject the final construction contract proposal, under the regulations set forth in subpart P of this part, except that the Self-Governance Tribe may, in lieu of filing an appeal, initiate an action in Federal district court and proceed directly under sections 511 [25 U.S.C. 458aaa-10] and 110(a) of the Act [25 U.S.C. 450m-1(a)]. With respect to any hearing or appeal or civil action conducted pursuant to this section, the Secretary shall have the burden of demonstrating by clear and convincing evidence the validity of the grounds for rejecting the final construction project proposal (or portion thereof); and
(e) Provide the Self-Governance Tribe with the option of entering into the severable portions of a final proposed construction project agreement (including a lesser funding amount) that the Secretary did not reject, subject to any additional alterations necessary to conform the construction project agreement to the severed provisions. Exercising this option does not affect the Self-Governance Tribe's right to appeal the portion of the final construction project proposal that was rejected by the Secretary.
If the Secretary fails to notify the Self-Governance Tribe of the decision to approve or reject within 30 days (or a longer period if agreed to by the Self-Governance Tribe in writing), then the proposal will be deemed approved by the Secretary.
(a) A Self-Governance Tribe may include costs allowed by applicable OMB Circulars, and costs allowed under sections 508(c) [25 U.S.C. 458aaa-7(c)], 106 [25 U.S.C. 450j-1] and 105 (m) of the Act [25 U.S.C. 450j(m)]. The costs incurred will vary depending on which phase of the construction process the Self-Governance Tribe is conducting and type of construction project agreement that will be used.
(b) Regardless of whether a construction project agreement is fixed price or cost-reimbursement, budgets may include costs or fees associated with the following:
(1) Construction project proposal preparation;
(2) Conducting community meetings to develop project documents;
(3) Architects, engineers, and other consultants to prepare project planning documents, to develop project plans and specifications, and to assist in oversight of the design during construction;
(4) Real property lease or acquisition;
(5) Development of project surveys including topographical surveys, site boundary descriptions, geotechnical surveys, archeological surveys, and NEPA compliance;
(6) Project management, superintendence, safety and inspection;
(7) Travel, including local travel incurred as a direct result of conducting the construction project agreement and remote travel in conjunction with the project;
(8) Consultants, such as demographic consultants, planning consultants, attorneys, accountants, and personnel
(9) Project site development;
(10) Project construction cost;
(11) General, administrative overhead, and indirect costs;
(12) Securing and installing moveable equipment, telecommunications and data processing equipment, furnishings, including works of art, and special purpose equipment when part of a construction contract;
(13) Other costs directly related to performing the construction project agreement;
(14) Project Contingency:
(i) A cost-reimbursement project agreement budgets contingency as a broad category. Project contingency remaining at the end of the project is considered savings.
(ii) Fixed-price agreements budget project contingency in the lump sum price or unit price.
(c) In the case of a fixed-price project agreement, a reasonable profit determined by taking into consideration the relevant risks and local market conditions.
(a) Cost-reimbursement agreements generally have one or more of the following characteristics:
(1) Risk is shared between IHS and the Self-Governance Tribe;
(2) Self-Governance Tribes are not required to perform beyond the amount of funds provided under the agreement;
(3) Self-Governance Tribes establish budgets based upon the actual costs of the project and are not allowed to include profit;
(4) Budgets are stated using broad categories, such as planning, design, construction project administration, and contingency;
(5) The agreement funding amount is stated as a “not to exceed” amount;
(6) Self-Governance Tribes provide notice to the IHS if they expect to exceed the amount of the agreement and require more funds;
(7) Excess funds remaining at the end of the project are considered savings; and
(8) Actual costs are subject to applicable OMB circulars and cost principles.
(b) Fixed Price agreements generally have one or more of the following characteristics:
(1) Self-Governance Tribes assume the risk for performance;
(2) Self-Governance Tribes are entitled to make a reasonable profit;
(3) Budgets may be stated as lump sums, unit cost pricing, or a combination thereof;
(4) For unit cost pricing, savings may occur if actual quantity is less than estimated; and,
(5) Excess funds remaining at the end of a lump sum fixed price project are considered profit, unless, at the option of the Self-Governance Tribe, such amounts are reclassified in whole or in part as savings.
The Secretary must provide funding for a construction project agreement in accordance with sections 106 [25 U.S.C. 450j-1] and 508(c) of the Act [25 U.S.C. 458aaa-7(c)].
Yes, at the request of the Self-Governance Tribe, the Secretary must include funds from other agencies as permitted by law, whether on an ongoing or a one-time basis.
Yes, notwithstanding any other provision of law, all funds provided under a construction project agreement may be treated as non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program.
Yes, the Self-Governance Tribe and the Secretary may jointly fund projects. The construction project agreement should identify the Secretarial amount and any Tribal contribution amount that is being incorporated into the construction project agreement. The Self-Governance Tribe does not have to deposit its contribution with the Secretary.
(a) For all construction project agreements, advance payments shall be made annually or semiannually, at the Self-Governance Tribe's option. The initial payment shall include all contingency funding for the project or phase of the project to the extent that there are funds appropriated for that purpose.
(b) The amount of subsequent payments is based on the mutually agreeable project schedule reflecting:
(1) Work to be accomplished within the advance payment period,
(2) Work already accomplished, and
(3) Total prior payments for each annual or semiannual advance payment period.
(c) For lump sum, fixed price agreements, at the request of the Self-Governance Tribe, payments shall be based on an advance payment period measured as follows:
(1) One year; or
(2) Project Phase(e.g., planning, , design, construction.) If project phase is chosen as the payment period, the full amount of funds necessary to perform the work for that phase of the construction project agreement is payable in the initial advance payment. For multi-phase projects, the planning and design phases must be completed prior to the transfer of funds for the associated construction phase. The completion of the planning and design phases will include at least one opportunity for Secretarial approval in accordance with § 137.360.
(d) For the purposes of payment, Sanitation Facilities Construction Projects authorized pursuant to Pub. L. 86-121, are considered to be a single construction phase and are payable in a single lump sum advance payment in accordance with paragraph (c)(2) of this section.
(e) For all other construction project agreements, the amount of advance payments shall include the funds necessary to perform the work identified in the advance payment period of one year.
(f) Any agreement to advance funds under paragraphs (b), (c) or (d) of this section is subject to the availability of appropriations.
(g) (1) Initial advance payments are due within 10 days of the effective date of the construction project agreement; and
(2) subsequent payments are due:
(i) Within 10 days of apportionment for annual payments or
(ii) Within 10 days of the start date of the project phase for phase payments.
All funds, including contingency funds, remaining at the conclusion of the project are considered savings and may be used by the Self-Governance Tribe to provide additional services for the purpose for which the funds were originally appropriated. No further approval or justifying documentation is required before the expenditure of the remaining funds.
(a) For lump sum fixed price construction project agreements, all funds remaining at the conclusion of the project are considered profits and belong to the Self-Governance Tribe.
(b) For fixed price construction project agreements with unit price components, all funds remaining that are associated with overestimated unit price quantities are savings and may be used by the Self-Governance Tribe in accordance with section 137.342. All other funds remaining at the conclusion of the project are considered profit and belong to the Self-Governance Tribe.
(c) At the option of the Self-Governance Tribe, funds otherwise identified in paragraphs (a) and (b) as “profit” may be reclassified, in whole or in part, as savings and to that extent may be used by the Self-Governance Tribe in accordance with section 137.142.
Yes, a Self-Governance Tribe may reallocate funds among construction project agreements to the extent not prohibited by applicable appropriation law(s).
Yes, a Self-Governance Tribe assumes responsibility for completing a construction project, including day-to-day on-site management and administration of the project, in accordance with the negotiated construction project agreement. However, Self-Governance Tribes are not required to perform beyond the amount of funds provided. For example, a Self-Governance Tribe may encounter unforeseen circumstances during the term of a construction project agreement. If this occurs, options available to the Self-Governance Tribe include, but are not limited to:
(a) Reallocating existing funding;
(b) Reducing/revising the scope of work that does not require an amendment because it does not result in a significant change;
(c) Utilizing savings from other projects;
(d) Requesting additional funds or appropriations;
(e) Utilizing interest earnings;
(f) Seeking funds from other sources; and/or
(g) Redesigning or re-scoping that does result in a significant change by amendment as provided in §§ 137.363 and 137.364.
Yes, a Self-Governance Tribe must provide the Secretary with construction project progress and financial reports semiannually or, at the option of the Self-Governance Tribe, on a more frequent basis. Self-Governance Tribes are only required to submit the reports, as negotiated in the Construction Project Agreement, after funds have been transferred to the Self-Governance Tribe for a construction project. Construction project progress reports and financial reports are only required for active construction projects.
Construction project progress reports contain information about accomplishments during the reporting period and issues and concerns of the Self-Governance Tribe, if any.
Construction project financial reports contain information regarding the amount of funds expended during the reporting period, and financial concerns of the Self-Governance Tribe, if any.
The Secretary shall have at least one opportunity to approve project planning and design documents prepared by the Self-Governance Tribe in advance of construction if the Self-Governance Tribe is required to submit planning or design documents as a part of the scope of work under a construction project agreement.
Yes, but only if there is an amendment to the construction project agreement that results in a significant change in the original scope of work.
Yes, the Self-Governance Tribe, at its discretion, may request the Secretary to amend a construction project agreement to include additional projects. In addition, amendments are required if there is a significant change from the original scope of work or if funds are added by the Secretary. The Self-Governance Tribe may make immaterial changes to the performance period and make budget adjustments within available funding without an amendment to the construction project agreement.
(a) The Secretary shall promptly notify the Self-Governance Tribe in writing of any concerns or issues that may lead to disapproval. The Secretary shall share relevant information and documents, and make a good faith effort to resolve all issues and concerns of the Self-Governance Tribe. If, after consultation with the Self-Governance Tribe, the Secretary intends to disapprove the proposed amendment, then the Secretary shall follow the procedures set forth in § 137.330 through 137.334.
(b) The time allowed for Secretarial review, comment, and approval of amendments is 30 days, or within a longer time if agreed to by the Self-Governance Tribe in writing. Absence of a written response by the Secretary within 30 days shall be deemed approved.
(c) The timeframe set forth in paragraph (b) of this section is intended to be the maximum time and may be reduced based on urgency and need, by agreement of the parties. If the Self-Governance Tribe requests reduced timeframes for action due to unusual or special conditions (such as limited construction periods), the Secretary shall make a good faith effort to accommodate the requested timeframes.
A significant change in the original scope of work is:
(a) A change that would result in a cost that exceeds the total of the project funds available and the Self-Governance Tribe's contingency funds; or
(b) A material departure from the original scope of work, including substantial departure from timelines negotiated in the construction project agreement.
(a) The Secretary shall review and approve planning documents to ensure
(b) The Secretary shall promptly notify the Self-Governance Tribe in writing of any concerns or issues that may lead to disapproval. The Secretary shall share relevant information and documents, and make a good faith effort to resolve all issues and concerns of the Self-Governance Tribe. If, after consultation with the Self-Governance Tribe, the Secretary intends to disapprove the documents, then the Secretary shall follow the procedures set forth in § 137.333.
(c) The time allowed for Secretarial review, comment, and approval of planning and design documents is 21 days, unless otherwise agreed to by the Self-Governance Tribe in writing. Absence of a written response by the Secretary within 21 days shall be deemed approved.
Yes, the Secretary may conduct onsite project oversight visits semiannually or on an alternate schedule negotiated in the construction project agreement. The Secretary must provide the Self-Governance Tribe with reasonable advance written notice to assist the Self-Governance Tribe in coordinating the visit. The purpose of the visit is review the progress under the construction project agreement. At the request of the Self-Governance Tribe, the Secretary must provide the Self-Governance Tribe a written site visit report.
No, the Secretary has no role in the day-to-day management of a construction project.
No, the Secretary is not responsible for oversight and compliance of health and safety codes during construction projects being performed by a Self-Governance Tribe under section 509 of the Act [25 U.S.C. 488aaa-8].
Yes, to the extent the provisions are not inconsistent with the provisions in this subpart. Provisions that do not apply include: programmatic reports and data requirements; reassumption; compact and funding agreement review, approval, and final offer process; and compact and funding agreement contents.
The Self-Governance Tribe takes title to the real property unless the Self-Governance Tribe requests that the Secretary take title to the property.
No, the Secretary does not have a role in the fee-to-trust process except to provide technical assistance if requested by the Self-Governance Tribe.
No, unless the Self-Governance Tribe has requested the Secretary to take fee title to the property.
No, unless the Self-Governance Tribe has requested the Secretary take fee title to the property. The Self-Governance Tribe is responsible for acquiring all real property needed to perform a construction project under a construction project agreement, not the Secretary. The Secretary shall not withhold funds or refuse to enter into a construction project agreement because of a disagreement between the Self-Governance Tribe and the Secretary over the Self-Governance Tribe's decisions to purchase or lease real property.
Yes, Tribally-owned facilities constructed under section 509 of the Act [25 U.S.C. 458aaa-8] are eligible for replacement, maintenance, and improvement funds on the same basis as if title to such property were vested in the United States.
No, however, the Self-Governance Tribe and the Secretary may negotiate the use of Federal metric requirements in the construction project agreement when the Self-Governance Tribe will design and/or construct an IHS facility that the Secretary will own and operate.
No, unless otherwise agreed to by the Tribe, no provision of the Office of Federal Procurement Policy Act, the Federal Acquisition Regulations issued pursuant thereto, or any other law or regulation pertaining to Federal procurement (including Executive Orders) shall apply to any construction project conducted under section 509 of the Act [25 U.S.C. 458aaa-8]. The Secretary and the Self-Governance Tribe may negotiate to apply specific provisions of the Office of Federal Procurement and Policy Act and Federal Acquisition Regulations to a construction project agreement or funding agreement. Absent a negotiated agreement, such provisions and regulatory requirements do not apply.
No, the Federal Davis-Bacon Act and wage rates do not apply to construction projects performed by Self-Governance Tribes using their own funds or other non-Federal funds.
Davis-Bacon Act wage rates only apply to laborers and mechanics employed by the contractors and subcontractors (excluding Indian Tribes, inter-Tribal consortia, and Tribal organizations) retained by Self-Governance Tribes to perform construction. The Davis-Bacon Act and wage rates do not apply when Self-Governance Tribes perform work with their own employees.
The IHS will consult with Tribes on budget issues consistent with Administration policy on Tribal consultation.
Yes, no later than January 1 of each year after the date of enactment of the Tribal Self-Governance Amendments of 2000, the Secretary shall submit to the Committee on Indian Affairs of the Senate and the Committee on Resources of the House of Representatives a written report regarding the administration of Title V. The report shall include a detailed analysis of the funding requirements presently funded or unfunded for each Indian Tribe or Tribal organization, either directly by the Secretary, under self-determination contracts under Title I, or under compacts and funding agreements authorized under Title V.
No, in compiling reports pursuant to this section, the Secretary may not impose any reporting requirements on Self-Governance Tribes, not otherwise provided in Title V.
The report shall be compiled from information contained in funding agreements, annual audit reports, and data of the Secretary regarding the disposition of Federal funds. The report must identify:
(a) The relative costs and benefits of self-governance, including savings;
(b) With particularity, all funds that are specifically or functionally related to the provision by the Secretary of services and benefits to Self-Governance Tribes and their members;
(c) The funds transferred to each Self-Governance Tribe and the corresponding reduction in the Federal bureaucracy;
(d) The funding formula for individual Tribal shares of all headquarters' funds, together with the comments of affected Self-Governance Tribes, developed under § 137.405 of this subpart; and
(e) Amounts expended in the preceding fiscal year to carry out inherent Federal functions, including an identification of those functions by type and location.
Yes, for the purposes of section 110 of the Act [25 U.S.C. 450m-1] the term “contract” includes compacts, funding agreements, and construction project agreements entered into under Title V.
Yes, the regulations at 25 CFR Part 900, Subpart N apply to compacts, funding agreements, and construction project agreements entered into under Title V.
An Indian Tribe may appeal:
(a) A decision to reject a final offer, or a portion thereof, under section 507(b) of the Act [25 U.S.C. 458aaa-6(b)];
(b) A decision to reject a proposed amendment to a compact or funding agreement, or a portion thereof, under section 507(b) of the Act [25 U.S.C. 458aaa-6(b)];
(c) A decision to rescind and reassume a compact or funding agreement, in whole or in part, under section 507(a)(2) of the Act [25 U.S.C. 458aaa-6(a)(2)], except for immediate reassumptions under section 507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)];
(d) A decision to reject a final construction project proposal, or a portion thereof, under section 509(b) of the Act [25 U.S.C. 458aaa-8(b)] and subpart N of this part; and
(e) For construction project agreements carried out under section 509 of the Act [25 U.S.C. 458aaa-8], a decision to reject project planning documents, design documents, or proposed amendments submitted by a Self-Governance Tribe under section 509(f) of the Act [25 U.S.C. 458aaa-8(f)] and subpart N of this part.
No, §§ 137.415 through 137.436 only apply to decisions listed in § 137.415. Specifically, §§ 137.415 through 137.436 do not apply to any other dispute, including, but not limited to:
(a) Disputes arising under the terms of a compact, funding agreement, or construction project agreement that has been awarded;
(b) Disputes arising from immediate reassumptions under section 507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)] and § 137.261 and 137.262, which are covered under § 137.440 through 137.445.
(c) Other post-award contract disputes, which are covered under § 137.412.
(d) Denials under the Freedom of Information Act, 5 U.S.C. 552, which may be appealed under 45 CFR part 5.
(e) Decisions relating to the award of grants under section 503(e) of the Act [25 U.S.C. 458aaa-2(e)], which may be appealed under 45 CFR part 5.
The IBIA may use the procedures set forth in 43 CFR 4.22-4.27 as a guide.
Every decision in any of the areas listed in § 137.415 must contain information which shall tell the Indian Tribe where and when to file the Indian Tribe's appeal. Each decision shall include the following statement:
Within 30 days of the receipt of this decision, you may request an informal conference under 42 CFR 137.421, or appeal this decision under 42 CFR 137.425 to the Interior Board of Indian Appeals (IBIA). Should you decide to appeal this decision, you may request a hearing on the record. An appeal to the IBIA under 42 CFR 137.425 shall be filed with the IBIA by certified mail or by hand delivery at the following address: Board of Indian Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203. You shall serve copies of your Notice of Appeal on the Secretary and on the official whose decision is being appealed. You shall certify to the IBIA that you have served these copies.
The IBIA has the authority:
(a) to conduct a hearing on the record;
(b) to permit the parties to engage in full discovery relevant to any issue raised in the matter;
(c) to issue a recommended decision;
(d) to take such action as necessary to insure rights specified in § 137.430.
Yes, the Indian Tribe may request an informal conference. An informal conference is a way to resolve issues as quickly as possible, without the need for a formal hearing. Or, the Indian Tribe may, in lieu of filing an administrative appeal under this subpart or upon completion of an informal conference, file an action in Federal court pursuant to section 110 of the Act [25 U.S.C. 450m-1].
The Indian Tribe must file its request for an informal conference with the office of the person whose decision it is appealing, within 30 days of the day it receives the decision. The Indian Tribe may either hand-deliver the request for an informal conference to that person's office, or mail it by certified mail, return receipt requested. If the Indian Tribe mails the request, it will be considered filed on the date the Indian Tribe mailed it by certified mail.
(a) The informal conference must be held within 30 days of the date the request was received, unless the Indian Tribe and the authorized representative of the Secretary agree on another date.
(b) If possible, the informal conference will be held at the Indian Tribe's office. If the meeting cannot be held at the Indian Tribe's office and is held more than fifty miles from its office, the Secretary must arrange to pay transportation costs and per diem for incidental expenses to allow for adequate representation of the Indian Tribe.
(c) The informal conference must be conducted by a designated representative of the Secretary.
(d) Only people who are the designated representatives of the Indian Tribe, or authorized by the Secretary are allowed to make presentations at the informal conference. Such designated representatives may include Office of Tribal Self-Governance.
(a) Within 10 days of the informal conference, the person who conducted the informal conference must prepare and mail to the Indian Tribe a written report which summarizes what happened at the informal conference and a recommended decision.
(b) Every report of an informal conference must contain the following language:
Within 30 days of the receipt of the recommended decision from the informal conference, you may file an appeal of the initial decision of the DHHS agency with the Interior Board of Indian Appeals (IBIA) under 42 CFR 137.425. You may request a hearing on the record. An appeal to the IBIA under 42 CFR 137.425 shall be filed with the IBIA by certified mail or hand delivery at the following address: Board of Indian Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203. You shall serve copies of your Notice of Appeal on the Secretary and on the official whose decision is being appealed. You shall certify to the IBIA that you have served these copies. Alternatively you may file an action in Federal court pursuant to section 110 of the Act. [25 U.S.C. 450m-1].
No. If the Indian Tribe is dissatisfied with the recommended decision from the informal conference, it may still appeal the initial decision within 30 days of receiving the recommended decision and the report of the informal conference. If the Indian Tribe does not file a notice of appeal within 30 days, or before the expiration of the extension it has received under § 137.426 , the recommended decision of the informal conference becomes final for the Secretary and may be appealed to Federal court pursuant to section 110 of the Act [25 U.S.C. 450m-1].
(a) If the Indian Tribe decides to appeal, it must file a notice of appeal with the IBIA within 30 days of receiving either the initial decision or the recommended decision from the informal conference.
(b) The Indian Tribe may either hand-deliver the notice of appeal to the IBIA, or mail it by certified mail, return receipt requested. If the Indian Tribe mails the Notice of Appeal, it will be considered filed on the date the Indian Tribe mailed it by certified mail. The Indian Tribe should mail the notice of appeal to: Board of Indian Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203.
(c) The Notice of Appeal must:
(1) Briefly state why the Indian Tribe thinks the initial decision is wrong;
(2) Briefly identify the issues involved in the appeal; and
(3) State whether the Indian Tribe wants a hearing on the record, or whether the Indian Tribe wants to waive its right to a hearing.
(d) The Indian Tribe must serve a copy of the notice of appeal upon the official whose decision it is appealing. The Indian Tribe must certify to the IBIA that it has done so.
(e) The authorized representative of the Secretary will be considered a party to all appeals filed with the IBIA under the Act.
(f) In lieu of filing an administrative appeal an Indian Tribe may proceed directly to Federal court pursuant to section 110 of the Act [25 U.S.C. 450m-1].
Yes, if the Indian Tribe needs additional time, the Indian Tribe may request an extension of time to file its Notice of Appeal with the IBIA within 60 days of receiving either the initial decision or the recommended decision resulting from the informal conference. The request of the Indian Tribe must be in writing, and must give a reason for not filing its notice of appeal within the 30-day time period. If the Indian Tribe has a valid reason for not filing its notice of appeal on time, it may receive an extension.
(a) Within 5 days of receiving the Indian Tribe's notice of appeal, the IBIA will decide whether the appeal falls under § 137.415. If so, the Indian Tribe is entitled to a hearing.
(b) If the IBIA cannot make that decision based on the information included in the notice of appeal, the IBIA may ask for additional statements from the Indian Tribe, or from the appropriate Federal agency. If the IBIA asks for more statements, it will make its decision within 5 days of receiving those statements.
(c) If the IBIA decides that the Indian Tribe is not entitled to a hearing or if the Indian Tribe has waived its right to a hearing on the record, the IBIA will dismiss the appeal and inform the Indian Tribe that it is not entitled to a hearing or has waived its right to a hearing.
(a) If a hearing is to be held, the IBIA will refer the Indian Tribe's case to the Hearings Division of the Office of Hearings and Appeals of the U.S. Department of the Interior. The case will then be assigned to an Administrative Law Judge (ALJ), appointed under 5 U.S.C. 3105.
(b) Within 15 days of the date of the referral, the ALJ will hold a pre-hearing
(1) A briefing and discovery schedule;
(2) A schedule for the exchange of information, including, but not limited to witness and exhibit lists, if an evidentiary hearing is to be held;
(3) The simplification or clarification of issues;
(4) The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if an evidentiary hearing is to be held;
(5) The possibility of agreement disposing of all or any of the issues in dispute; and
(6) Such other matters as may aid in the disposition of the appeal.
(c) The ALJ shall order a written record to be made of any conference results that are not reflected in a transcript.
(a) The ALJ must hold a hearing within 90 days of the date of the order referring the appeal to the ALJ, unless the parties agree to have the hearing on a later date.
(b) At least 30 days before the hearing, the Secretary must file and serve the Indian Tribe with a response to the notice of appeal.
(c) If the hearing is held more than 50 miles from the Indian Tribe's office, the Secretary must arrange to pay transportation costs and per diem for incidental expenses to allow for adequate representation of the Indian Tribe.
(d) The hearing shall be conducted in accordance with the Administrative Procedure Act, 5 U.S.C. 556.
As required by section 518 of the Act [25 U.S.C. 458aaa-17], the Secretary must demonstrate by clear and convincing evidence the validity of the grounds for the decision made and that the decision is fully consistent with provisions and policies of the Act.
Both the Indian Tribe and the Secretary have the same rights during the appeal process. These rights include the right to:
(a) Be represented by legal counsel;
(b) Have the parties provide witnesses who have knowledge of the relevant issues, including specific witnesses with that knowledge, who are requested by either party;
(c) Cross-examine witnesses;
(d) Introduce oral or documentary evidence, or both;
(e) Require that oral testimony be under oath;
(f) Receive a copy of the transcript of the hearing, and copies of all documentary evidence which is introduced at the hearing;
(g) Compel the presence of witnesses, or the production of documents, or both, by subpoena at hearings or at depositions;
(h) Take depositions, to request the production of documents, to serve interrogatories on other parties, and to request admissions; and
(i) Any other procedural rights under the Administrative Procedure Act, 5 U.S.C. 556.
(a) Within 30 days of the end of the formal hearing or any post-hearing briefing schedule established by the ALJ, the ALJ shall send all the parties a recommended decision, by certified mail, return receipt requested. The recommended decision must contain the ALJ's findings of fact and conclusions of law on all the issues. The recommended decision shall also state that the Indian Tribe has the right to object to the recommended decision.
(b) The recommended decision shall contain the following statement:
Within 30 days of the receipt of this recommended decision, you may file an objection to the recommended decision with the Secretary under 42 CFR 137.43. An appeal to the Secretary under 42 CFR 137.43 shall be filed at the following address: Department of Health and Human Services, 200 Independence Ave. S.W., Washington, DC, 20201. You shall serve copies of your notice of appeal on the official whose decision is being appealed. You shall certify to the Secretary that you have served this copy. If neither party files an objection to the recommended decision within 30 days, the recommended decision will become final.
No, any party to the appeal may file precise and specific written objections to the recommended decision, or any other comments, within 30 days of receiving the recommended decision. Objections must be served on all other parties. The recommended decision shall become final for the Secretary 30 days after the Indian Tribe receives the ALJs recommended decision, unless a written statement of objections is filed with the Secretary during the 30-day period. If no party files a written statement of objections within 30 days, the recommended decision shall become final for the Secretary.
(a) The Secretary has 45 days from the date it receives the final authorized submission in the appeal to modify, adopt, or reverse the recommended decision. The Secretary also may remand the case to the IBIA for further proceedings. If the Secretary does not modify or reverse the recommended decision or remand the case to the IBIA during that time, the recommended decision automatically becomes final.
(b) When reviewing the recommended decision, the Secretary may consider and decide all issues properly raised by any party to the appeal, based on the record.
(c) The decision of the Secretary must:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law that are modified or reversed;
(3) Give reasons for the decision, based on the record; and
(4) State that the decision is final for the Department.
No, a pending appeal will not adversely affect or prevent the negotiation or award of another compact, funding agreement, or construction project agreement.
Yes, all final decisions must be published for the Department under this subpart. Decisions can be found on the Department's website.
(a) The Secretary may, upon written notification to the Self-Governance Tribe, immediately reassume operation of a program, service, function, or activity (or portion thereof) if:
(1) The Secretary makes a finding of imminent substantial and irreparable endangerment of the public health caused by an act or omission of the Self-Governance Tribe; and
(2) The endangerment arises out of a failure to carry out the compact or funding agreement.
(b) When the Secretary advises a Self-Governance Tribe that the Secretary
Yes, unless the Self-Governance Tribe waives its right to a hearing in writing. The Deputy Director of the Office of Hearings and Appeals must appoint an Administrative Law Judge to hold a hearing,
(a) The hearing must be held within 10 days of the date of the notice referred to in § 137.440 unless the Self-Governance Tribe agrees to a later date.
(b) If possible, the hearing will be held at the office of the Self-Governance Tribe. If the hearing is held more than 50 miles from the office of the Self-Governance Tribe, the Secretary must arrange to pay transportation costs and per diem for incidental expenses. This will allow for adequate representation of the Self-Governance Tribe.
(a) Within 30 days after the end of the hearing or any post-hearing briefing schedule established by the ALJ, the ALJ must send all parties a recommended decision by certified mail, return receipt requested. The recommended decision shall contain the ALJs findings of fact and conclusions of law on all the issues. The recommended decision must also state that the Self-Governance Tribe has the right to object to the recommended decision.
(b) The recommended decision must contain the following statement:
Within 15 days of the receipt of this recommended decision, you may file an objection to the recommended decision with the Secretary under § 137.443. An appeal to the Secretary under 25 CFR 900.165(b) shall be filed at the following address: Department of Health and Human Services, 200 Independence Ave. SW., Washington, DC 20201. You shall serve copies of your notice of appeal on the official whose decision is being appealed. You shall certify to the Secretary that you have served this copy. If neither party files an objection to the recommended decision within 15 days, the recommended decision will become final.
No, any party to the appeal may file precise and specific written objections to the recommended decision, or any other comments, within 15 days of receiving the recommended decision. The objecting party must serve a copy of its objections on the other party. The recommended decision will become final 15 days after the Self-Governance Tribe receives the ALJs recommended decision, unless a written statement of objections is filed with the Secretary during the 15-day period. If no party files a written statement of objections within 15 days, the recommended decision will become final.
(a) The Secretary has 15 days from the date the Secretary receives timely written objections to modify, adopt, or reverse the recommended decision. If the Secretary does not modify or reverse the recommended decision during that time, the recommended decision automatically becomes final.
(b) When reviewing the recommended decision, the Secretary may consider and decide all issues properly raised by any party to the appeal, based on the record.
(c) The decision of the Secretary must:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law that are modified or reversed;
(3) Give reasons for the decision, based on the record; and
(4) State that the decision is final for the Secretary.
No, a pending appeal will not adversely affect or prevent the negotiation or award of another compact, funding agreement, or construction project agreement.
Yes, EAJA claims against the Department will be heard pursuant to 25 CFR 900.177.
Minerals Management Service (MMS), Interior.
Notice of proposed rulemaking.
This proposed rule would reorganize and update the requirements and processes for submitting various plans and information for MMS review and approval before a lessee or an operator may explore, develop, or produce oil and gas and sulphur in the Outer Continental Shelf (OCS).
We will consider all comments received by August 15, 2002. We will begin reviewing comments then and may not fully consider comments we receive after August 15, 2002.
If you wish to comment, you may mail or hand-carry comments (three copies) to the Department of the Interior; Minerals Management Service; Mail Stop 4024; 381 Elden Street; Herndon, Virginia 20170-4817; Attention: Rules Processing Team (RPT). If you wish to e-mail comments, the e-mail address is:
Mail or hand-carry comments with respect to the information collection burden of the proposed rule to the Office of Information and Regulatory Affairs; Office of Management and Budget; Attention: Desk Officer for the Department of the Interior (OMB control number 1010-NEW); 725 17th Street, NW., Washington, DC 20503.
Kumkum Ray, Engineering and Operations Division, (703) 787-1600.
The current regulations at 30 CFR part 250, subpart B, are structured into five broad sections: General Requirements, Preliminary Activities, Well Location and Spacing, Exploration Plan, and Development and Production Plan. This rule would reorganize and clarify the requirements pertaining to Exploration Plans (EP), Development and Production Plans (DPP), and Development Operations Coordination Documents (DOCD). It also would add sections to describe Deepwater Operations Plans (DWOP) and Conservation Information Documents (CID). The rule would provide more descriptive headings under which a large number of separate sections would state the current requirements clearly and concisely and in a more logical order. In writing this rule, we focused on:
• Clarifying and updating the review process;
• Providing a concise list of the contents of EP, DPP, and DOCD (plan) submissions; and
• Detailing the accompanying information that operators must submit to support their plans.
The rule was written by the MMS Subpart B Team. Members of the team are Allen Adams (Office of Environmental Evaluation/Pacific OCS Region), Maureen Bornholdt (Headquarters/Environmental Division), Phyllis Casey (Operations/Alaska OCS Region), James Grant (Operations/Pacific OCS Region), Bonnie LaBorde Johnson (Leasing and Environment/Gulf of Mexico (GOM) OCS Region), and Kent Stauffer (Field Operations/GOM OCS Region), with Kumkum Ray (Headquarters/Engineering and Operations Division) as team leader. David Zinzer (Headquarters/Resource Evaluation Division) contributed on geologic and geophysical (G&G) issues.
We wrote this proposed rule in a plain-language format. We have tried to set out these requirements in a straightforward and uncomplicated way. The plain-language format uses the term “you,” (or “I” in questions), which means the lessee, assignee of a lessee, operating rights holder, or a person acting on behalf of any of those persons. (See 30 CFR § 250.105.) We emphasize that “you” are responsible for ensuring that all requirements are met. We encourage your comments on our use of the plain-language format in this rule as well as future rulemaking.
After the proposed rule is published, we will post a companion draft NTL for the GOM OCS Region on our website at
On April 1, 1988, we published final regulations (30 CFR part 250) that govern oil, gas, and sulphur exploration, development, and production requirements for operations on the OCS. The regulations were divided into subparts A through P. Each subpart was further divided into sections. Recently, we began rewriting the regulations to improve clarity, and the need for additional and shorter sections became acute. Therefore, on May 29, 1998 (63 FR 29487), we published a final rule redesignating the sections of 30 CFR part 250 “Oil and Gas and Sulphur Operations in the Outer Continental Shelf.” That rulemaking action allotted 100 sections to each subpart and provided the flexibility to better organize our regulations.
As further background, MMS has issued NTLs and Letters to Lessees and Operators (LTLs) to explain and clarify its regulations. We no longer issue LTLs, and we issue NTLs only when necessary. We rescind NTLs that have served their short-term purpose and now regularly review our long-term NTLs—both regional and national—to keep them up-to-date and to ensure their accuracy and applicability.
MMS must comply with the National Environmental Policy Act (NEPA), its implementing regulations issued by the Council on Environmental Quality at 40 CFR parts 1500 through 1508, and policies of the Department of the Interior (DOI) and MMS. According to NEPA requirements, MMS must prepare an Environmental Assessment (EA) in connection with its review of plans for activities on the OCS. The contents of plans must be sufficient to support a sound analysis of potential environmental impacts that may result from the proposed activity. The appropriate MMS Region prepares these analyses for every plan received.
However, the NEPA regulations (40 CFR 1508.4) do allow agencies to exclude categories of actions from the preparation of an EA or an Environmental Impact Statement (EIS) when agency procedures have demonstrated these actions—individually or cumulatively—do not have a significant effect on the environment.
MMS follows the procedures outlined in the DOI's Departmental Manual (516 DM 15) to categorically exclude (“CATEX”) routine OCS lease or unit plans in the Western and Central GOM Planning Areas unless certain
Whether MMS reviews plans through the CER or EA process, we require that environmental impacts are avoided or diminished to an acceptable level through plan amendments and/or conditions we impose in the plan approval.
In addition to supporting the environmental analyses, MMS needs the information included in a plan to demonstrate that the proposed activity will not violate pertinent Federal laws intended to protect the marine, coastal, and human environment (Coastal Zone Management Act (CZMA), Clean Air Act, Endangered Species Act, Marine Mammal Protection Act, National Historic Preservation Act, etc.).
In rewriting subpart B, we incorporated many of the detailed procedures and processes that were addressed previously in LTLs and NTLs. Thus, although the proposed rule may appear to contain many changes from the text of the current 30 CFR part 250, subpart B, including expanded lists of data and information to be submitted, the rewritten regulations basically would reflect current requirements and ongoing practices as conveyed to operators via NTLs and former LTLs.
There are, however, some new or expanded areas. Following is a list of the major changes we are proposing in this rule:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
The proposed rule clarifies that our adequacy review will not begin until we receive both the OCS plan and its accompanying information. Our objective is efficiency—so that lessees and operators provide MMS with all required information for OCS Lands Act, NEPA, and CZMA purposes at the beginning of the process. These regulations and the related draft NTL notify industry “up front” of the information needed for expeditious review of an OCS plan, thereby reducing the need for additional filings and costly delays. This will benefit industry and MMS long-term, particularly in those cases when an EA is required.
(9)
(10)
(11)
(12)
(13)
(14)
The derivation table below shows where the proposed requirements come from in relation to the current sections.
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
This proposed rule is not a significant rule under Executive Order 12866. The Office of Management and Budget (OMB) has determined that it is not a significant rule and will not review the rule.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The major purpose for this proposed rule is the restructuring of the rule and clarifying the regulatory language. The restructuring and plain-language revisions will not result in any economic effects to small or large entities. Some of the proposed technical revisions will have a minor economic effect on lessees and operators with respect to the paperwork requirements. Although we estimate a total annual paperwork burden of 267,880 hours for all entities, this includes an actual increase of only 7,510 hours. Using a standard hourly cost of $50 to determine the paperwork burden, the increase would be $375,500. Based on 130 lessees/operators, the average increase is approximately $2,900 per entity from the current regulation. These costs will not cause an annual effect on the economy of $100 million.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The rule does not affect how lessees or operators interact with other agencies. Nor does this rule affect how MMS will interact with other agencies.
(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. The rule only addresses the requirements and processes for submitting various plans and documents for MMS review and approval before an operator may explore, develop, or produce oil and gas in the OCS.
(4) This rule does not raise novel legal or policy issues. The rule involves a new policy issue, that of requiring a written notice to MMS before beginning certain ancillary activities and any G&G activity under a plan, but the new policy decision is not “novel.” Under our regulations at 30 CFR part 251, MMS requires an application for a permit or the filing of a notice before allowing certain types of prelease G&G activities. The new requirement in the rule would enable MMS to better ensure safe use and environmental protection of the OCS. Notification would enable MMS to be aware of significant sets of valuable data that could and should be incorporated into MMS analyses and MMS-funded studies.
The Department of the Interior certifies that this proposed rule will not have a significant economic effect on a substantial number of small entities under the RF Act (5 U.S.C. 601
• Respondents may be required to submit a report that summarizes and analyzes information obtained or derived from ancillary activities. We estimate the burden would only be to provide MMS copies of the company documentation and report and would be 1 hour or $50 per report. We estimate 20 reports annually, for a cost burden increase of $1,000.
• We estimate the overall average burden of a plan (EP, DPP, or DOCD) to increase by approximately 20 hours or $1,000 per plan. We estimate 260 EPs and 100 DPPs or DOCDs, for a total of 360 plans or a cost burden increase of $360,000.
• Respondents may be required to submit monitoring plans for approval before beginning work estimated to take 1 hour or $50 per plan. We estimate 30 plans annually, for a cost burden increase of $1,500.
• Respondents may be required to retain copies of all monitoring data obtained or derived from monitoring programs. The burden would only be to make the information available to MMS. We estimated a burden of 2 hours or $100 annually per respondent and the number of respondents to be 130. The estimated annual cost burden increase would be $13,000.
Adding the increased paperwork cost burden amounts, we have a total of $375,000. ($1,000 + $360,000 + $1,500 + $13,000 = $375,500.) Thus, based on 130 lessees/operators, the average increase is $2,900, for both large and small entities.
As discussed above, we do not believe that this rule will have a significant impact on the lessees who explore for and produce oil and gas on the OCS, including those that are classified as small businesses.
Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free (888) 734-3247.
This rule is not a major rule under (5 U.S.C. 804(2)) the SBREFA. This rule:
(a) Does not have an annual effect on the economy of $100 million or more. As described above, we estimate an annual increase of $2,900 per respondent. These costs will not cause an annual effect on the economy of $100 million.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The minor increase in cost will not change the way the oil and gas industry conducts business, nor will it affect regional oil and gas prices; therefore, it will not cause major cost increases for consumers, the oil and gas industry, or any Government agencies.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or ability of United States-based enterprises to compete with foreign-based enterprises. All lessees and drilling contractors, regardless of nationality, will have to comply with the requirements of this rule. So the rule will not affect competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.
The rule contains a collection of information that has been submitted to OMB for review and approval under § 3507(d) of the PRA. The title of the collection of information for this rule is “Proposed Rulemaking—30 CFR 250, Subpart B—Outer Continental Shelf Plans” (OMB control number 1010-NEW). Respondents include approximately 130 Federal OCS oil and gas or sulphur lessees and operators. The frequency of response is on occasion. Responses to this collection of information are mandatory. MMS will protect proprietary information according to the Freedom of Information Act and 30 CFR 250.196, “Data and information to be made available to the public.”
The information collection burden in the current subpart B regulations is approved by OMB under control number 1010-0049. The following details the proposed changes to the information collection requirements of the current regulations:
We estimate the total annual reporting and recordkeeping “hour” burden for the rule will be 267,880 hours, of which only 7,510 hours is for the revised paperwork requirements. Following is a breakdown of the burden estimate.
The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves the collection of information and assigns an OMB control number, you are not required to respond. OMB is required to make a decision concerning the collection of information of this proposed regulation between 30 to 60 days after publication of this document in the
a. MMS specifically solicits comments on the following questions:
(1) Is the proposed collection of information necessary for MMS to properly perform its functions, and will it be useful?
(2) Are the estimates of the burden hours of the proposed collection reasonable?
(3) Do you have any suggestions that would enhance the quality, clarity, or usefulness of the information to be collected?
(4) Is there a way to minimize the information collection burden on those who are to respond, including the use of appropriate automated electronic, mechanical, or other forms of information technology?
b. In addition, the PRA requires agencies to estimate the total annual reporting and recordkeeping “non-hour cost” burden resulting from the collection of information. We have not identified any, and we solicit your comments on this item. For reporting and recordkeeping only, your response should split the cost estimate into two components:
(1) Total capital and start-up cost component, and (2) annual operation, maintenance, and purchase of services component. Your estimates should consider the costs to generate, maintain, and disclose or provide the information. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Generally, your estimates should not include equipment or services purchased: before October 1, 1995; to comply with requirements not associated with the information collection; for reasons other than to provide information or keep records for the Government; or as part of customary and usual business or private practices.
According to Executive Order 13132, this rule does not have Federalism implications. This rule does not substantially and directly affect the relationship between the Federal and State Governments. The rule applies to lessees that operate on the OCS. This rule does not impose costs on States or localities. Any costs will be the responsibility of the lessees/operators.
According to Executive Order 12630, the rule does not have significant Takings implications. A Takings Implication Assessment is not required. The rule revises existing operation regulations. It does not prevent any lessee, operator, or drilling contractor from performing operations on the OCS, provided they follow the regulations. Thus, MMS did not need to prepare a Takings Implication Assessment according to Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866. The rule does not have a significant effect on energy supply, distribution, or use because the major purpose for this rule is the restructuring of the rule and clarifying regulatory language. The rule addresses the requirements and processes for submitting various plans and documents for MMS approval before an operator may explore, develop, or produce oil and gas in the OCS and contains virtually all the same reporting and recordkeeping requirements and attendant costs as the existing regulations. There are some new or expanded areas of this rule that will only be incorporated into a final rule after a thorough analysis of public comments we receive.
According to Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement is not required.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have any Federal mandates nor does the rule have a significant or unique effect on State, local, or tribal governments or the
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:
(1) Are the requirements in the rule clearly stated?
(2) Does the rule contain technical language or jargon that interfere with its clarity?
(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4) Would the rule be easier to understand if it were divided into more (but shorter) sections?
(5) Is the description of the rule in the
Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address:
Environmental impact statements, Environmental protection, Government contracts, Incorporation by reference, Investigations, Mineral royalties, Oil and gas development and production, Oil and gas exploration, Oil and gas reserves, Outer continental shelf, Penalties, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements, Sulphur development and production, Sulphur exploration, Surety bonds.
For reasons stated in the preamble, the Minerals Management Service (MMS) proposes to amend 30 CFR part 250 as follows:
1. The authority citation for part 250 continues to read as follows:
43 U.S.C. 1331
2. Subpart B and its title are revised to read as follows:
Acronyms and terms used in this subpart have the following meanings:
(a)
(b) Terms used in this subpart are listed here:
(1) You conduct to obtain information to ensure the proper exploration or development of your lease or unit;
(2) Do not need to be covered by an approved Exploration Plan (EP), Development and Production Plan (DPP), or Development Operations Coordination Document (DOCD); and
(3) You can conduct without MMS approval of an application or permit.
(1) Geophysical and geological (G&G) surveys using magnetic, gravity, seismic reflection, seismic refraction, gas sniffers, coring, or other systems to detect or imply the presence of oil, gas, or sulphur; and
(2) Any drilling conducted for the purpose of searching for commercial quantities of oil, gas, and sulphur, including the drilling of any additional well needed to delineate any reservoir to enable the lessee to decide whether to proceed with development and production (see § 250.105.)
(1) Function in a manner that potentially causes different impacts to the environment than the equipment or procedures did in the past;
(2) Have not been used previously or extensively in an MMS OCS Region;
(3) Have not been used previously under the anticipated operating conditions; or
(4) Have operating characteristics that are outside the performance parameters established by this Part.
(a)
(b)
(c)
(1) Sufficient information or analysis is readily available to MMS;
(2) Other coastal or marine resources are not present or affected;
(3) You conduct activities according to a comprehensive environmental management program; or
(4) Other factors such as technological advances affect information needs.
(d)
Your EP, DPP, or DOCD must demonstrate that you have planned and are prepared to conduct the proposed activities in a manner that:
(a) Conforms to the Act, as amended, applicable implementing regulations, and lease provisions and stipulations;
(b) Is safe;
(c) Conforms to sound conservation practices and protects the rights of the lessor;
(d) Does not unreasonably interfere with other uses of the OCS, including those involved with national security or defense; and
(e) Does not cause undue or serious harm or damage to the human, marine, or coastal environment.
The Regional Supervisor reviews and approves proposed well location and spacing under an EP, DPP or DOCD. In deciding whether to approve a proposed well location and spacing, the Regional Supervisor will consider factors including, but not limited to, the following:
(a) Protecting correlative rights;
(b) Recovering optimum resources;
(c) Number of wells that can be economically drilled for proper reservoir management;
(d) Location of drilling units and platforms;
(e) Extent and thickness of the reservoir;
(f) Geologic and other reservoir characteristics;
(g) Minimizing environmental risk;
(h) Preventing unreasonable interference with other uses of the OCS; and
(i) Drilling of unnecessary wells.
(a) You must either:
(1) Drill and produce the wells that the Regional Supervisor determines are necessary to protect MMS from loss due to production on other leases or units; or
(2) Pay a sum that the Regional Supervisor determines and approves as adequate to compensate MMS for your failure to drill and produce any well.
(b) Payment under paragraph (a)(2) of this section constitutes production in paying quantities for the purpose of extending the lease term.
(c) You must complete and produce any penetrated hydrocarbon-bearing zone that the Regional Supervisor determines is necessary to conform to sound conservation practices.
For wells that could intersect or drain an adjacent property, the Regional Supervisor may require special measures to protect the rights of MMS and objecting lessees or operators of adjacent leases or units.
(a)
(1) Four copies that contain all required information (proprietary copies);
(2) Eight copies for public distribution (public information copies) that omit information that you assert is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552) and the implementing regulations (43 CFR part 2); and
(3) Any additional copies that may be necessary to facilitate review of the EP, DPP, or DOCD by certain affected States.
(a)
(c)
(d)
Before or after you submit an EP, DPP, or DOCD to MMS, you may elect, the regulations in this part may require, or the Regional Supervisor may direct you to conduct ancillary activities. Ancillary activities include:
(a) Geophysical and geological explorations, and development geophysical activities, except those that must be covered by an EP, DPP, or DOCD under § 250.201(a)(6), or § 250.209.
(b) Geological hazards, geotechnical, archaeological, biological, physical oceanographic, meteorological, socioeconomic, or other surveys; or
(c) Studies that model potential oil and hazardous substance spills, drilling muds and cuttings discharges, projected air emissions, or potential hydrogen sulfide (H
At least 30 calendar days before you conduct any geophysical and geological exploration or development geophysical activity (see § 250.207(a)), you must notify the Regional Supervisor in writing.
(a) When you prepare the notice, you must:
(1) Sign and date the notice;
(2) Provide the names of the vessel, its operator, and the person(s) in charge; the type(s) of operations you will conduct; and the instrumentation/techniques and vessel navigation you will use;
(3) Provide expected start and completion dates and the location of the activity; and
(4) Describe the potential adverse environmental effects of the proposed activity and any mitigation to eliminate or minimize these effects on the marine, coastal, and human environment.
(b) The Regional Supervisor may require you to:
(1) Give written notice to MMS before you conduct any other ancillary activity in addition to those listed in § 250.207(a); and
(2) Notify other users of the OCS before you conduct any ancillary activity.
The Regional Supervisor will review any notice required under § 250.208(b) to ensure that your ancillary activity complies with the performance standards listed in § 250.202 (a), (b), (d), and (e). Under § 250.106, the Regional Supervisor may notify you that your ancillary activity does not comply with those standards. In such a case, the Regional Supervisor will require you to submit an EP, DPP, or DOCD, and you may not start your ancillary activity until the Regional Supervisor approves the EP, DPP, or DOCD.
(a)
(b)
Your EP must include the following:
(a)
(b)
(c)
The following information must accompany your EP:
(a) General information required by § 250.213;
(b) Geophysical and geological information required by § 250.214;
(c) Hydrogen sulfide information required by § 250.215;
(d) Biological, physical, and socioeconomic information required by § 250.216;
(e) Solid and liquid wastes and discharges information and cooling water intake information required by § 250.217;
(f) Air emissions information required by § 250.218;
(g) Oil and hazardous substance spills information required by § 250.219;
(h) Alaska planning information required by § 250.220;
(i) Environmental monitoring information required by § 250.221;
(j) Lease stipulations information required by § 250.222;
(k) Mitigation measures information required by § 250.223;
(l) Support vessels and aircraft information required by § 250.224;
(m) Onshore support facilities information required by § 250.225;
(n) Coastal zone management information required by § 250.226;
(o) An environmental impact analysis required by § 250.227; and
(p) Administrative information required by § 250.228.
The following general information must accompany your EP:
(a)
(b)
(c)
(d)
(e)
(1) The activities and facilities proposed in your EP are covered by an appropriate lease or areawide surety bond or alternative security instrument according to 30 CFR part 256, subpart I;
(2) You have demonstrated or will demonstrate oil spill financial responsibility for facilities proposed in your EP according to 30 CFR part 253; and
(3) You have or will have the financial capability to drill a relief well and conduct other emergency well control operations.
(f)
(g)
(h)
The following G&G information must accompany your EP:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
The following H
(a)
(b)
(c)
(d)
(1) The analysis in the modeling report must be specific to the particular site of your proposed exploration activities and must consider any nearby human-occupied OCS facilities, shipping lanes, fishery areas, and other points where humans may be subject to potential exposure from an H
(2) If any H
In developing your EP, if you obtain the following information, you must include a report, or the information obtained, or a reference to such a report or information if you have already submitted it to the Regional Supervisor, as accompanying information:
(a)
(b)
(c)
The following solid and liquid wastes and discharges information and cooling water intake information must accompany your EP:
(a)
Describe:
(1) The methods you used for determining this information; and
(2) Your plans for treating, storing, and downhole disposal of these wastes at your drilling location(s).
(b)
(1) A table showing the name, projected amount, and rate of discharge for each waste type; and
(2) A description of the discharge method you will use.
(c)
(1) A discussion of how you will comply with the provisions of the applicable general NPDES permit that covers your proposed exploration activities; or
(2) A copy of your application for an individual NPDES permit. Briefly describe the major discharges and methods you will use for compliance.
(d)
(e)
The following air emissions information, as applicable, must accompany your EP:
(a)
(1) For each source on or associated with the drilling unit (including well test flaring and well protection structure installation), you must list:
(i) The projected peak hourly emissions;
(ii) The total annual emissions in tons per year;
(iii) Emissions over the duration of the proposed exploration activities;
(iv) The frequency and duration of emissions; and
(v) The total of all emissions listed in paragraphs (a)(1)(i) through (iv) of this section.
(2) You must provide the basis for all calculations, including engine size and rating and applicable operational information.
(3) You must base the projected emissions on the maximum rated capacity of the equipment on the proposed drilling unit under its physical and operational design.
(4) If the specific drilling unit has not yet been determined, you must use the maximum emission estimates for the type of drilling unit you will use.
(b)
(c)
(d)
(e)
(f)
The following information regarding potential spills of oil (see definition under 30 CFR 254.6) and hazardous substances (see definition under 40 CFR part 116) as applicable, must accompany your EP:
(a)
(1) An Oil Spill Response Plan (OSRP) for the facilities you will use to conduct your exploration activities prepared according to the requirements of 30 CFR part 254, subpart B; or
(2) Reference to your approved regional OSRP (see 30 CFR 254.3) to include:
(i) A discussion of your regional OSRP;
(ii) The location of your primary oil spill equipment base and staging area;
(iii) The name(s) of your oil spill removal organization(s) for both equipment and personnel;
(iv) The calculated volume of your worst case discharge scenario (see 30 CFR 254.26(a)), and a comparison of the appropriate worst case discharge scenario in your approved regional OSRP with the worst case discharge scenario that could result from your proposed exploration activities; and
(v) A description of the worst case discharge scenario that could result from your proposed exploration activities (see 30 CFR 254.26 (b), (c), (d) and (e)).
(b)
If you propose exploration activities in the Alaska OCS Region, the following planning information must accompany your EP:
(a)
(b)
The following environmental monitoring information, as applicable, must accompany your EP:
(a)
(b)
A description of the measures you took, or will take, to satisfy the conditions of lease stipulations related to your proposed exploration activities must accompany your EP.
A description of any measures you will use, beyond those required by the regulations in this part, to minimize or mitigate environmental impacts from your proposed exploration activities must accompany your EP.
The following information on the support vessels, offshore vehicles, and aircraft you will use must accompany your EP:
(a)
(b)
(c)
(d)
(e)
The following information on the onshore support facilities you will use must accompany your EP:
(a)
(1) Indicate whether the onshore support facilities are existing, to be constructed, or to be expanded.
(2) If the onshore support facilities are, or will be located, in areas not adjacent to the Western GOM, provide a timetable for acquiring lands (including rights-of-way and easements) and constructing or expanding them.
(b)
(c)
(d)
Your EP must be accompanied by a copy of your consistency certification under § 307(c)(3)(B) of the CZMA (16 U.S.C. 1456(c)(3)(B)) and 15 CFR 930.76(d) that states that each of the proposed exploration activities described in detail in this EP comply with (name of State(s)) approved coastal management program(s) and will be conducted in a manner that is consistent with such program(s).
The following EIA information must accompany your EP:
(a)
(1) Assess the potential environmental impacts of your proposed exploration activities;
(2) Be project specific; and
(3) Be as detailed as necessary to assist the Regional Supervisor in complying with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321
(b)
(1) Meteorology, oceanography, geology, and geological and/or manmade hazards;
(2) Air and water quality;
(3) Benthic communities, marine mammals, sea turtles, coastal and marine birds, fish and shellfish, and plant life;
(4) Threatened or endangered species and their critical habitat;
(5) Sensitive biological resources or habitats such as essential fish habitat,
(6) Archaeological resources;
(7) Socioeconomic resources including employment, existing offshore and coastal infrastructure (including major sources of supplies, services, energy, water), land use, subsistence resources and harvest practices, recreation, recreational and commercial fishing (including typical fishing seasons, location, and type), minority and lower income groups, and coastal zone management programs;
(8) Coastal and marine uses such as military activities, shipping, and mineral exploration or development; and
(9) Other resources, conditions, and activities identified by the Regional Supervisor.
(c)
(1) Analyze the potential direct and indirect impacts (including those from accidents and cooling water intake structures) that your proposed exploration activities will have on the identified resources, conditions, and activities;
(2) Analyze any potential cumulative impacts from other activities to those identified resources, conditions, and activities potentially impacted by your proposed exploration activities;
(3) Describe the type, severity, and duration of these potential impacts and their biological, physical, and other consequences and implications;
(4) Describe potential measures to minimize or mitigate these potential impacts; and
(5) Summarize the information you incorporate by reference.
(d)
(e)
The following administrative information must accompany your EP:
(a)
(b)
(2) The location(s) where the Regional Supervisor can inspect the cited referenced material if you have not submitted it.
(a)
(1) The submitted information, including the information that must accompany the EP (refer to list in § 250.212), fulfills requirements and is sufficiently accurate;
(2) You have provided all needed additional information (see § 250.201(b)); and
(3) You have provided the required number of copies (see § 250.206(a)).
(b)
(a)
(1)
(2)
(b)
(c)
(d)
(a)
(b)
(a)
(b)
(c)
If an affected State objects to the coastal zone consistency certification accompanying your proposed EP, you may do one of the following:
(a)
(b)
(1) Grant your appeal by finding, under § 307(c)(3)(B)(iii) of the CZMA (16 U.S.C. 1456(c)(3)(B)(iii)) that each activity described in detail in your EP is consistent with the objectives of the CZMA or is otherwise necessary in the interest of national security; or
(2) Deny your appeal, in which case you may amend your EP as described in paragraph (a) of this section.
(c)
Your DPP or DOCD must include the following:
(a)
(1) Development drilling;
(2) Well test flaring;
(3) Installation of production platforms, satellite structures, subsea wellheads and manifolds, and lease term pipelines (see definition at § 250.105);
(4) Installation of production facilities and conduct of production operations; and
(5) In the MMS Alaska and Pacific OCS Regions, 2-D, 3-D, 4-D, and multicomponent seismic activities.
(b)
(c)
(d)
The following information must accompany your DPP or DOCD.
(a) General information required by § 250.243;
(b) Geological and geophysical information required by § 250.244;
(c) Hydrogen sulfide information required by § 250.245;
(d) Mineral resource conservation information required by § 250.246;
(e) Biological, physical, and socioeconomic information required by § 250.247;
(f) Solid and liquid wastes and discharges information and cooling water intake information required by § 250.248;
(g) Air emissions information required by § 250.249;
(h) Oil and hazardous substance spills information required by § 250.250;
(i) Alaska planning information required by § 250.251;
(j) Environmental monitoring information required by § 250.252;
(k) Lease stipulations information required by § 250.253;
(l) Mitigation measures information required by § 250.254;
(m) Decommissioning information required by § 250.255;
(n) Related facilities and operations information required by § 250.256;
(o) Support vessels and aircraft information required by § 250.257;
(p) Onshore support facilities information required by § 250.258;
(q) Sulphur operations information required by § 250.259;
(r) Coastal zone management information required by § 250.260;
(s) An environmental impact analysis required by § 250.261; and
(t) Administrative information required by § 250.262.
The following general information must accompany your DPP or DOCD:
(a)
(b)
(c)
(1) Estimates of the average and peak rates of production for each type of production, the life of the reservoir(s) you intend to produce, and a production decline curve; and
(2) The chemical and physical characteristics of the produced oil (see definition under 30 CFR 254.6) that you will handle or store at the facilities you will use to conduct your proposed development and production activities.
(d)
(e)
(f)
(1) The activities and facilities proposed in your DPP or DOCD are covered by an appropriate lease or areawide surety bond or alternative security instrument according to 30 CFR part 256, subpart I;
(2) You have demonstrated or will demonstrate oil spill financial responsibility for facilities proposed in your DPP or DOCD, according to 30 CFR part 253; and
(3) You have or will have the financial capability to drill a relief well and conduct other emergency well control operations.
(g)
(h)
(i)
The following G&G information must accompany your DPP or DOCD:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
The following H
(a)
(b)
(c)
(d)
(i) Model a potential worst case H
(ii) Include a modeling report, or the modeling results, or a reference to such report or results if you have already submitted it to the Regional Supervisor.
(2) The analysis in the modeling report must be specific to the particular site of your development and production activities and must consider any nearby human-occupied OCS facilities, shipping lanes, fishery areas, and other points where humans may be subject to potential exposure from an H
(3) If any H
The following mineral resource conservation information, as applicable, must accompany your DPP or DOCD:
(a)
(b)
(c)
In developing your DPP or DOCD, if you obtain the following information, you must include a report, or the information obtained, or a reference to such a report or information if you have already submitted it to the Regional Supervisor, as accompanying information:
(a)
(b)
(c)
The following solid and liquid wastes and discharges information and cooling water intake information must accompany your DPP or DOCD:
(a)
(1) The methods you used for determining this information; and
(2) Your plans for treating, storing, and downhole disposal of these wastes at your facility location(s).
(b)
(1) A table showing the name, projected amount, and rate of discharge for each waste type; and
(2) A description of the discharge method you will use.
(c)
(1) A discussion of how you will comply with the provisions of the applicable general NPDES permit that covers your proposed development and production activities; or
(2) A copy of your application for an individual NPDES permit. Briefly describe the major discharges and methods you will use for compliance.
(d)
(e)
The following air emissions information, as applicable, must accompany your DPP or DOCD:
(a)
(1) For each source on or associated with the facility you will use to conduct your proposed development and production activities, you must list:
(i) The projected peak hourly emissions;
(ii) The total annual emissions in tons per year;
(iii) Emissions over the duration of the proposed development and production activities;
(iv) The frequency and duration of emissions; and
(v) The total of all emissions listed in paragraph (a)(1)(i) through (iv) of this section.
(2) For a facility modification, you must show the revised emission rates for each source as well as the incremental change for each source.
(3) You must provide the basis for all calculations including engine size and rating and applicable operational information.
(4) You must base the projected emissions on the maximum rated capacity of the equipment and the maximum throughput of the facility you will use to conduct your proposed development and production activities under its physical and operational design.
(5) If the specific drilling unit has not yet been determined, you must use the maximum emission estimates for the type of drilling unit you will use.
(b)
(c)
(d)
(e)
(f)
The following information regarding potential spills of oil (see definition under 30 CFR 254.6) and hazardous substances (see definition under 40 CFR part 116), as applicable, must accompany your DPP or DOCD:
(a)
(1) An Oil Spill Response Plan (OSRP) for the facilities you will use to conduct your proposed development and production activities prepared according to the requirements of 30 CFR part 254, subpart B; or
(2) Reference to your approved regional OSRP (see 30 CFR 254.3) to include:
(i) A discussion of your regional OSRP;
(ii) The location of your primary oil spill equipment base and staging area;
(iii) The name(s) of your oil spill removal organization(s) for both equipment and personnel;
(iv) The calculated volume of your worst case discharge scenario (see 30 CFR 254.26(a)), and a comparison of the appropriate worst case discharge scenario in your approved regional OSRP with the worst case discharge scenario that could result from your proposed development and production activities; and
(v) A description of the worst case oil spill scenario that could result from your proposed development and production activities (see 30 CFR 254.26(b), (c), (d), and (e)).
(b)
If you propose development and production activities in the Alaska OCS Region, the following planning information must accompany your DPP:
(a)
(b)
The following environmental monitoring information, as applicable, must accompany your DPP or DOCD:
(a)
(b)
A description of the measures you took, or will take, to satisfy the conditions of lease stipulations related to your proposed development and production activities must accompany your DPP or DOCD.
A description of any measures you will use, beyond those required by the regulations in this part, to minimize or mitigate environmental impacts from your proposed development and production activities must accompany your DPP or DOCD.
A brief description of how you intend to decommission your wells, platforms, pipelines, and other facilities, and clear your site(s) must accompany your DPP or DOCD.
The following information regarding facilities and operations directly related to your proposed development and production activities must accompany your DPP or DOCD:
(a)
(1) Drilling units;
(2) Production platforms;
(3) Right-of-way pipelines (including those that transport chemical products and produced water); and
(4) Other facilities and operations located on the OCS (regardless of ownership).
(b)
(1) Routes of any new pipelines;
(2) Information concerning barges and shuttle tankers (including the storage capacity of the transport vessel(s) and the number of transfers that will take place per year);
(3) Information concerning any intermediate storage or processing facilities;
(4) An estimate of the quantities of oil, gas, and/or sulphur to be transported from your production facilities; and
(5) A description and location of the primary onshore terminal.
The following information on the support vessels, offshore vehicles, and aircraft you will use must accompany your DPP or DOCD:
(a)
(b)
(c)
(d)
(e)
The following information on the onshore support facilities you will use must accompany your DPP or DOCD:
(a)
(1) Indicate whether the onshore support facilities are existing, to be constructed, or to be expanded; and
(2) For DPPs only, provide a timetable for acquiring lands (including rights-of-way and easements) and constructing or expanding any of the onshore support facilities.
(b)
(c)
(d)
If you are proposing to conduct sulphur development and production activities, the following information must accompany your DPP or DOCD:
(a)
(b)
Your DPP or DOCD must be accompanied by a copy of your consistency certification under § 307(c)(3)(B) of the CZMA (16 U.S.C. 1456(c)(3)(B)) and 15 CFR 930.76(d), that states that each of the proposed development and production activities described in detail in this DPP or DOCD comply with (name of State(s)) approved coastal management program(s) and will be conducted in a manner that is consistent with such program(s).
The following EIA information must accompany your DPP or DOCD:
(a)
(1) Assess the potential environmental impacts of your proposed development and production activities;
(2) Be project specific; and
(3) Be as detailed as necessary to assist the Regional Supervisor in complying with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321
(b)
(1) Meteorology, oceanography, geology, and geological and/or manmade hazards;
(2) Air and water quality;
(3) Benthic communities, marine mammals, sea turtles, coastal and marine birds, fish and shellfish, and plant life;
(4) Threatened or endangered species and their critical habitat;
(5) Sensitive biological resources or habitats such as essential fish habitat, refuges, preserves, special management areas identified in coastal management programs, sanctuaries, rookeries, and calving grounds;
(6) Archaeological resources;
(7) Socioeconomic resources (including the approximate number, timing, and duration of employment of persons engaged in onshore support and construction activities), population (including the approximate number of people and families added to local onshore areas), existing offshore and onshore infrastructure (including major sources of supplies, services, energy, and water), types of contractors or vendors that may place a demand on local goods and services, land use, subsistence resources and harvest practices, recreation, recreational and commercial fishing (including seasons, location, and type), minority and lower income groups, and coastal zone management programs;
(8) Coastal and marine uses such as military activities, shipping, and mineral exploration or development; and
(9) Other resources, conditions, and activities identified by the Regional Supervisor.
(c)
(1) Analyze the potential direct and indirect impacts (including those from accidents and cooling water intake structures) that your proposed development and production activities will have on the identified resources, conditions, and activities;
(2) Analyze any potential cumulative impacts from other activities to those identified resources, conditions, and activities potentially impacted by your proposed development and production activities;
(3) Describe the type, severity, and duration of these potential impacts and their biological, physical, and other consequences and implications;
(4) Describe potential measures to minimize or mitigate these potential impacts;
(5) Describe any alternatives to your proposed development and production activities that you considered while developing your DPP or DOCD and compare the potential environmental impacts; and
(6) Summarize the information you incorporate by reference.
(d)
(e)
The following administrative information must accompany your DPP or DOCD:
(a)
(b)
(2) The location(s) where the Regional Supervisor can inspect the cited referenced material if you have not submitted it.
(a)
(1) The submitted information, including the information that must accompany the DPP or DOCD (refer to list in § 250.242), fulfills requirements and is sufficiently accurate;
(2) You have provided all needed additional information (see § 250.201(b)); and
(3) You have provided the required number of copies (see § 250.206(a)).
(b)
(a)
(1)
(2)
(3)
(b)
(c)
(d)
(a)
(b)
(c)
The Regional Supervisor will evaluate the environmental impacts of the activities described in your proposed DPP or DOCD and prepare environmental documentation under NEPA (42 U.S.C.4321
(a)
(b)
(c)
(a)
(1) The Regional Supervisor will make a decision within 60 calendar days after the close of the comment period provided in § 267(a)(1), (a)(2), and (b); or the release or adoption of the final EIS for a DPP; or the receipt date of the last amendment to your proposed DOCD, whichever occurs later.
(2) Notwithstanding paragraph (a)(1) of this section, MMS will not approve your DPP or DOCD until either:
(i) All affected States with approved CZM programs concur, or have been conclusively presumed to concur, with your DPP or DOCD consistency certification under § 307(c)(3)(B)(i) and (ii) of the CZMA (16 U.S.C. 1456 (c)(3)(B)(i) and (ii)); or
(ii) The Secretary of Commerce has made a finding authorized by § 307(c)(3)(B)(iii) of the CZMA (16 U.S.C. 1456(c)(3)(B)(iii) (see § 250.274(b)(1)).
(b)
The Regional Supervisor will disapprove your proposed DPP or DOCD if one of the four reasons in this section applies.
(a)
(b)
(1) An affected State has delayed issuing a final decision on your coastal zone consistency certification (see 15 CFR 930.78(a)); or
(2) An affected State objects to your coastal zone consistency certification and the Secretary of Commerce, under § 307(c)(3)(B)(iii) of the CZMA (16 U.S.C. 1456(c)(3)(B)(iii)), does not find that each activity described in the DPP or DOCD is consistent with the objectives of the CZMA or is otherwise necessary in the interest of national security.
(3) If the Regional Supervisor disapproved your DPP or DOCD for the sole reason that an affected State either has delayed issuing a final decision on or objected to your coastal zone consistency certification (see paragraphs (b)(1) and (2) in this section), the Regional Supervisor will approve your DPP or DOCD upon receipt of concurrence, at the time concurrence is presumed, or when the Secretary of Commerce makes a finding authorized by § 307(c)(3)(B)(iii) of the CZMA (16 U.S.C. 1456(c)(3)(B)(iii)). In that event, you do not need to resubmit your DPP or DOCD for approval under § 250.273(b).
(c)
(d)
(1) Implementing your DPP or DOCD would cause serious harm or damage to life (including fish and other aquatic life), property, any mineral deposits (in areas leased or not leased), the national security or defense, or to the marine, coastal, or human environment;
(2) The threat of harm or damage will not disappear or decrease to an acceptable extent within a reasonable period of time; and
(3) The advantages of disapproving your DPP or DOCD outweigh the advantages of development and production.
If an affected State objects to the coastal zone consistency certification accompanying your proposed or disapproved DPP or DOCD, you may do one of the following:
(a)
(b)
(1) Grant your appeal by finding under § 307(c)(3)(B)(iii) of the CZMA (16 U.S.C. 1456(c)(3)(B)(iii)) that each activity described in detail in your DPP or DOCD is consistent with the objectives of the CZMA or is otherwise necessary in the interest of national security; or
(2) Deny your appeal, in which case you may amend or resubmit your DPP or DOCD, as described in paragraph (a) of this section.
(c)
(a)
(b)
The Regional Supervisor will use the performance standards in § 250.202 to either approve, require you to further modify, or disapprove your modified or resubmitted DPP or DOCD. The Regional Supervisor will make a decision within 60 calendar days after the Regional Supervisor deems your modified or resubmitted DPP or DOCD to be submitted or receives the last amendment to your modified or resubmitted DPP or DOCD, whichever occurs later.
(a)
(1) You may be subject to MMS enforcement action including civil penalty; and
(2) The lease(s) involved in your EP, DPP, or DOCD may be forfeited or cancelled under 43 U.S.C. 1334(c) or (d). If this happens, you will not be entitled to compensation under § 250.185(b) and 30 CFR 256.77.
(b)
(a)
(1) Approvals of applications for permits to drill (see § 250.414);
(2) Approvals of production safety systems (see § 250.800);
(3) Approvals of new platforms and other structures (or major modifications to platforms and other structures) (see § 250.901);
(4) Approvals of applications to install lease term pipelines (see § 250.1007); and
(5) Other permits, as required by applicable law.
(b)
(c)
(d)
(1) All affected States with approved CZM programs concur or are conclusively presumed to concur with your coastal zone consistency certification accompanying your EP under § 307(c)(3)(B)(i) and (ii) of the CZMA (16 U.S.C. 1456(c)(3)(B)(i) and (ii)); or
(2) The Secretary of Commerce finds, under § 307(c)(3)(B)(iii) of the CZMA (16 U.S.C. 1456 (c)(3)(B)(iii)) that each activity covered by the EP is consistent with the objectives of the CZMA or is otherwise necessary in the interest of national security.
(3) If an affected State objects to the coastal zone consistency certification accompanying your approved EP, you may revise your EP to accommodate the State's objection and submit the revision to the Regional Supervisor for approval.
After approving your EP, DPP, or DOCD, the Regional Supervisor may direct you to conduct monitoring programs. You must retain copies of all monitoring data obtained or derived from your monitoring programs and make them available to MMS upon request. The Regional Supervisor may require you to:
(a) Submit monitoring plans for approval before you begin the work; and
(b) Prepare and submit reports that summarize and analyze data and information obtained or derived from your monitoring programs. The Regional Supervisor will specify requirements for preparing and submitting these reports
(a)
(1) Change the type of drilling rig, production facility, or transportation mode;
(2) Change the surface location of a well or production platform by a distance more than that specified by the Regional Supervisor;
(3) Change the type of production or significantly increase the volume of production or storage capacity;
(4) Increase the emissions of an air pollutant to an amount that exceeds the amount specified in your approved EP, DPP, or DOCD;
(5) Significantly increase the amount of solid or liquid wastes to be handled or discharged;
(6) Request a new H
(7) Change the onshore support base you are using; or
(8) Change any other activity specified by the Regional Supervisor.
(b)
(a)
(b)
(a)
(b)
(c)
You must submit, and MMS must approve, a DWOP before you conduct any activities associated with a development project that will involve the use of floating production systems or subsea production technology for all water depths.
A DWOP contains information specific to floating production systems or subsea equipment issues that allows MMS to determine if the project is being developed in an acceptable manner.
You must prepare and submit your DWOP to the Regional Supervisor in three parts: the Conceptual Part, the Preliminary Part, and the Final Part, as required by the following table:
The Conceptual Part of a DWOP must include the following information:
(a) A location plat;
(b) An overview of the development concept(s); and
(c) Information concerning any temporarily abandoned well(s) that are being completed for production.
The Preliminary Part of a DWOP must include the following:
(a) A description and schematic of the typical wellbore, casing, and completion;
(b) Structural design, fabrication, and installation information for each surface system;
(c) Design, fabrication, and installation information on the mooring systems for each surface system;
(d) Information on any active stationkeeping system(s) involving thrusters or other means of propulsion used with a surface system;
(e) Information concerning the drilling and completion systems;
(f) Design and fabrication information for each riser system (e.g., drilling, workover, production, and injection);
(g) Pipeline information;
(h) Information about the design, fabrication, and operation of an offtake system for transferring produced hydrocarbons to a transport vessel;
(i) Information about subsea wells and associated systems that constitute all or a part of a single project development covered by the DWOP;
(j) A general description of surface production equipment. This may be in the form of a narrative or summary level diagrams. Identify the proposed fabrication, integration, and assembly locations of process equipment;
(k) A description of the surface/subsea safety system and emergency support systems;
(l) A description of the well production allocation test process;
(m) A general description of the operating procedures, including a table summarizing the curtailment of production and offloading based on operational considerations and environmental conditions (winds, waves, and/or currents);
(n) A description of the facility installation and commissioning procedure; and
(o) A summary of the hazard analysis to identify, evaluate, and reduce the likelihood and consequences of uncontrolled hydrocarbon releases and other safety or environmental incidents.
The Final Part of a DWOP must include the following information:
(a) A statement about your adherence to the Preliminary Part of the DWOP;
(b) A listing of any areas where the final configuration or operations differ from that approved under the Preliminary Part, with appropriate supporting documentation;
(c) Where the final configuration or operation impacts areas approved under other submittals (plans, applications, permits, etc.), a discussion and resolution of such issues under the affected submittal; and
(d) For multi-phased development concepts, an update, as applicable, of the status of future phases, and a prognosis for proceeding to the next phase.
You must submit four copies of a DWOP to the MMS regional office at the applicable address shown in § 250.206(b).
The Regional Supervisor will either approve or disapprove a particular part of your DWOP within the following number of days after the Regional Supervisor determines that each part of your DWOP is complete:
(a) Conceptual Part—30 calendar days.
(b) Preliminary Part—90 calendar days.
(c) Final Part—60 calendar days.
(a) You must submit, and the Regional Supervisor must approve, a CID before you conduct any of the following:
(1) Activities associated with a development project that will involve the use of a structure other than a conventional steel-piled jacket platform in water depths greater than 1,312 feet (400 meters); or
(2) Activities associated with a project utilizing subsea production technology at any water depth.
(b) MMS will use the information in the CID to ensure development of economically producible reservoirs according to sound conservation, engineering, and economic practices before you commit or expend substantial funds.
A CID must include all of the following information that is available for each penetrated hydrocarbon-bearing reservoir that would qualify a well as capable of producing in paying quantities under § 250.115 or § 250.116:
(a) Estimates of original oil and gas in-place and anticipated recoverable reserves;
(b) Reservoir development strategies or a statement that you do not plan to develop the reservoir;
(c) Project-specific economic justification, including risk assessment, consistent with your internal evaluation if you do not plan to develop the reservoir;
(d) Structure maps, showing the penetration point and subsea depth for each well penetrating the reservoir, fluid contacts or the lowest or highest known levels in the absence of actual contacts, reservoir boundaries, and the scale of the map;
(e) Interpreted structural cross sections and corresponding full-scale interpreted seismic lines or block diagrams, as necessary, that include all current wellbores and planned wellbores on the leases or units to be developed, the reservoir boundaries, gas/oil/water contacts, depth scale, stratigraphic positions, and relative biostratigraphic ages;
(f) Isopach maps of each reservoir showing the net feet of pay for each well within the reservoir identified at the penetration point, along with the well name, labeled contours, and the correct scale of the map;
(g) Appropriate well logs;
(h) Appropriate pressure data, specified by date, and whether estimated or measured; and
(i) Any other appropriate data you used in performing your reservoir evaluations and preparing your reservoir development strategies.
You must submit three copies of a CID to MMS's GOM OCS Region, Production and Development, Attention: Chief, Rate Control Section (MS 5330). You are encouraged to submit the CID as early as practical and before you make capital investment decisions that could be affected by MMS conservation decisions.
The Regional Supervisor will provide a written decision on your CID. MMS may disapprove your CID if we determine that additional wells or alternative development schemes would result in the economic recovery of significant additional volumes of oil and gas reserves.
Minerals Management Service (MMS), Interior.
Final rule.
This final rule amends MMS regulations governing oil and gas operations in the Outer Continental Shelf (OCS) to update decommissioning requirements. The rule includes requirements for plugging a well, decommissioning a platform and pipeline, and clearing a lease site. We restructured the requirements to make the regulations easier to read and understand. The final rule also updates requirements to reflect changes in technology. The final technical changes will help ensure that lessees and pipeline right-of-way holders conduct decommissioning operations safely and effectively.
July 16, 2002.
Sharon Buffington, Engineering and Research Branch, at (703) 787-1147.
On July 7, 2000, we published the proposed rule in the
In 1996, at the request of MMS, the Marine Board of the National Research Council (NRC) published a report titled “An Assessment of Techniques for Removing Offshore Structures.” On April 15-17, 1996, MMS convened an International Decommissioning Workshop in New Orleans, Louisiana, to discuss the recommendations in the NRC report and current industry decommissioning practices. The workshop drew over 475 attendees to discuss and make recommendations on OCS decommissioning operations. On August 8, 1996, MMS published a notice in the
We also sponsored several other public workshops, including one in Ventura, California, on September 23-25, 1997. The purpose of the workshops was to continue the process of discussing decommissioning activities and to receive recommendations.
In addition to the changes we made to the final rule in response to comments, MMS reworded certain phrases for further clarity. In many instances, the changes improve MMS's internal work processes. MMS has also added more specific guidance in this final rule concerning items that should be included in decommissioning applications.
We reviewed all of the comments, and in some instances, we revised the final language based on these comments. MMS grouped the comments by major issues and regulatory sections.
We received comments from various non-government agencies supporting the new organizational structure of the regulation which locates all of the decommissioning requirements into one subpart. We received no negative comments; therefore, we have kept that structure.
In § 250.1741, we have clarified that sensitive biological features must be protected by not trawling closer than 500 feet. This is a current requirement.
This document is not a significant rule and is not subject to review by the Office of Management and Budget (OMB) under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The new or expanded requirements are written in plain language and designed to ensure that lessees decommission facilities to protect the environment and minimize obstructions to other uses of the OCS. The economic effects of this rule will be minimal. Lessees planning decommissioning activities in the Pacific OCS Region and Alaska OCS Region would be required to plan these activities at least 2 years before production ceases and submit an initial decommissioning application. This will impact an estimated two lessees a year, as shown in Table 1. The cost to develop an initial decommissioning application is estimated at $1,000 per application.
Also, lessees who use domes to protect temporarily abandoned wells would be required to trawl over those domes after they install them. We estimate the cost for trawling would be $9,000 for each of the 45 existing domes and $9,000 to trawl each of the 10 additional domes installed each year. We estimate that 30 lessees will be required to trawl the 45 existing domes, and 5 lessees will trawl the additional 10 domes each subsequent year as shown in Table 2. The total costs are shown in Table 3.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The new or expanded requirements are minimal and apply only to the OCS decommissioning activities.
(3) This rule does not significantly alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. The new requirements and costs are minimal, and the main purpose of the rule is to write it in plain language.
(4) This rule does not raise novel legal or policy issues. The new requirements are based on the legal authority of the OCS Lands Act and other laws.
The Department certifies that this proposed rule will not have a significant economic effect on a substantial number of small entities under the RF Act (5 U.S.C. 601
• Annual revenues of $5 million or less for exploration service and field service companies.
• Fewer than 500 employees for drilling companies and for companies that extract oil, gas, or natural gas liquids.
Under the SBA's North American Industry Classification System code 211111, Crude Petroleum and Natural Gas Extraction, MMS estimates that there is a total of 1,380 firms that drill oil and gas wells onshore and offshore. Of these, approximately 130 companies are offshore lessees/operators, based on current estimates. According to SBA estimates, 39 companies qualify as large firms, leaving 91 companies qualified as small firms with fewer than 500 employees.
Where there are some additional new or expanded reporting requirements in this rule, they do not impose extensive burdens. The cost to comply with the new requirements is a one-time cost of approximately $9,000 paid to a trawling organization to trawl over domes of temporarily abandoned wells in shallow water. The OCS has approximately 45 of these domes. In subsequent years, we predict that 10 new domes will be trawled over. We estimate that 20 of the 30 lessees that will trawl over the 45 existing domes are small businesses and 3 out of the 5 lessees that will trawl over domes in subsequent years will be small businesses. The cost to the small businesses will be $180,000 the first year and $27,000 each subsequent year, as shown in Table 2 (in the Regulatory Planning and Review section). However, the trawling industry, another small business, will benefit by having less loss to their equipment.
Also, about two lessees per year in the Pacific OCS Region or Alaska OCS Region will need to submit an initial decommissioning plan for a cost of approximately $1,000 to develop each application as shown in Table 1 (in the Regulatory Planning and Review section).
We estimate that one of these lessees will be a small business. These plans are necessary to ensure that early planning is occurring for these upcoming decommissioning activities.
Based on these calculations, this rule has no significant economic impact on small entities.
Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small businesses. If you wish to comment on the enforcement actions of MMS, call toll-free (888) 734-3247.
This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). This rule:
(a) Does not have an annual effect on the economy of $100 million or more. The main purpose of this rule is to reorganize the requirements and write them in plain language. The new requirements will cost lessees $407,000 for the first year and $47,000 in subsequent years and only a few lessees will be affected.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The cost to comply with the new requirements is minor and will minimize conflicts with other uses of the OCS.
(c) Does not have a significant adverse effect on competition, employment, investment, productivity, innovation, or ability of U.S.-based enterprises to compete with foreign-based enterprises. The regulation contains a few new requirements that are not burdensome and ensure that decommissioning operations in the OCS are conducted properly.
We examined the proposed rule and these final regulations under section 3507(d) of the PRA. As part of the proposed rulemaking process, we submitted the information collection requirements in the entire proposed subpart Q to OMB for approval. The final regulations do contain minor changes in the collection of information from what was proposed. Therefore, before publication, we again submitted the subpart Q information collection to OMB, and OMB approved them under OMB control number 1010-0142, with a current expiration date of July 31, 2004. An agency may not collect or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The title of the collection of information for this final rule is “30 CFR 250, Subpart Q—Decommissioning Activities.” Respondents include approximately 130 Federal OCS oil and gas or sulphur lessees and 106 holders of pipeline rights-of-way. The frequency of response is on occasion or annually, depending upon the requirement. Responses to this collection of information are mandatory. MMS will protect proprietary information according to the Freedom of Information Act and 30 CFR 250.196, “Data and information to be made available to the public.”
This rulemaking primarily consolidates information collection requirements on decommissioning from our current regulations in 30 CFR 250, subparts G, I, and J (approved under OMB control numbers 1010-0079, 1010-0058, and 1010-0050, respectively). The approved burdens for those subparts will be correspondingly reduced when the new subpart Q regulations take effect. The proposed rulemaking imposed only one new information collection burden. Section 250.1726 (proposed § 250.1705) requires submission of an initial decommissioning application in the Pacific OCS Region and Alaska OCS
Most of the section numbers in the final regulations have changed from the proposed rule, and information collection requirements are now in different sections. The final regulations also are more specific with respect to several reporting requirements. These new burdens were included in the subsequent information collection submission that OMB approved.
We estimate the total annual reporting “hour” burden for the final rule to be 6,071 hours. There are no recordkeeping requirements. There are no paperwork “non-hour cost” burdens associated with these regulations. Following is a breakdown of the hour burden estimate.
According to Executive Order 13132, this rule does not have Federalism implications. This rule does not substantially and directly affect the relationship between the Federal and State governments. The final rule revises existing operation regulations. It does not prevent any lessee, operator, or drilling contractor from performing operations on the OCS, provided they follow the regulations. This rule is updating decommissioning requirements and will not impose costs on States or localities.
According to Executive Order 12630, the final rule does not represent a governmental action capable of interference with constitutionally protected property rights. The new requirements are minor and deal with minimizing obstructions to other uses of the OCS. Thus, a Takings Implication Assessment need not be prepared according to Executive Order 12630, Government Action and Interference with Constitutionally Protected Property Rights.
This rule is not a significant rule and is not subject to review by OMB under Executive Order 13211. The rule does not have a significant effect on energy supply, distribution, or use because it will not reduce crude oil supply or production. It also will not increase energy prices or increase dependence on foreign supplies. The new or expanded requirements are written in plain language and designed to ensure that lessees decommission facilities to protect the environment and minimize
According to Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of §§ 3(a) and 3(b)(2) of the Order.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule was mainly updated to include plain language and to give additional guidance. It contains very few new requirements, and it will not have a significant or unique effect on State, local, or tribal governments or the private sector. Therefore, a statement containing the information required by the UMRA (2 U.S.C. 1531
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required.
Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Investigations, Mineral royalties, Oil and gas development and production, Oil and gas exploration, Oil and gas reserves, Penalties, Pipelines, Natural gas, Petroleum, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements, Sulphur, Surety bonds.
Administrative practice and procedure, Continental shelf, Government contracts, Oil and gas exploration, Public lands—mineral resources, Reporting and recordkeeping requirements, Surety bonds.
43 U.S.C. 1331,
6. In § 250.1001, the following definition is added in alphabetical order:
(a) The requirements for decommissioning pipelines are listed in § 250.1750 through § 250.1754.
(b) The table in this section lists the requirements if you take a DOI pipeline out of service:
* * * It must contain those items addressed in §§ 250.1751 and 250.1752 of this part. * * *
43 U.S.C. 1331
(a)
(1) Ending oil, gas, or sulphur operations; and
(2) Returning the lease or pipeline right-of-way to a condition that meets the requirements of regulations of MMS and other agencies that have jurisdiction over decommissioning activities.
(b)
(c)
(a) Lessees and owners of operating rights are jointly and severally responsible for meeting decommissioning obligations for facilities on leases, including the obligations related to lease-term pipelines, as the obligations accrue and until each obligation is met.
(b) All holders of a right-of-way are jointly and severally liable for meeting decommissioning obligations for facilities on their right-of-way, including right-of-way pipelines, as the obligations accrue and until each obligation is met.
(c) In this subpart, the terms “you” or “I” refer to lessees and owners of operating rights, as to facilities installed under the authority of a lease, and to right-of-way holders as to facilities installed under the authority of a right-of-way.
You accrue decommissioning obligations when you do any of the following:
(a) Drill a well;
(b) Install a platform, pipeline, or other facility;
(c) Create an obstruction to other users of the OCS;
(d) Are or become a lessee or the owner of operating rights of a lease on which there is a well that has not been permanently plugged according to this subpart, a platform, a lease term pipeline, or other facility, or an obstruction;
(e) Are or become the holder of a pipeline right-of-way on which there is a pipeline, platform, or other facility, or an obstruction; or
(f) Re-enter a well that was previously plugged according to this subpart.
When your facilities are no longer useful for operations, you must:
(a) Get approval from the appropriate District Supervisor before decommissioning wells and from the Regional Supervisor before decommissioning platforms and pipelines or other facilities;
(b) Permanently plug all wells;
(c) Remove all platforms and other facilities;
(d) Decommission all pipelines;
(e) Clear the seafloor of all obstructions created by your lease and pipeline right-of-way operations; and
(f) Conduct all decommissioning activities in a manner that is safe, does not unreasonably interfere with other uses of the OCS, and does not cause undue or serious harm or damage to the human, marine, or coastal environment.
You must submit decommissioning applications and receive approval and submit subsequent reports according to the table in this section.
You must permanently plug all wells on a lease within 1 year after the lease terminates.
MMS will order you to permanently plug a well if that well:
(a) Poses a hazard to safety or the environment; or
(b) Is not useful for lease operations and is not capable of oil, gas, or sulphur production in paying quantities.
Before you permanently plug a well or zone, you must submit form MMS-124, Sundry Notices and Reports on Wells, and receive approval. A request for approval must contain the following information:
(a) The reason you are plugging the well (or zone), for completions with production amounts specified by the Regional Supervisor, along with substantiating information demonstrating its lack of capacity for further profitable production of oil, gas, or sulfur;
(b) Recent well test data and pressure data, if available;
(c) Maximum possible surface pressure, and how it was determined;
(d) Type and weight of well-control fluid you will use;
(e) A description of the work (including any measures proposed to protect archaeological or biological bottom features from anchor damage); and
(f) A current and proposed well schematic and description that includes:
(1) Well depth;
(2) All perforated intervals that have not been plugged;
(3) Casing and tubing depths and details;
(4) Subsurface equipment;
(5) Estimated tops of cement (and the basis of the estimate) in each casing annulus;
(6) Plug locations;
(7) Plug types;
(8) Plug lengths;
(9) Properties of mud and cement to be used;
(10) Perforating and casing cutting plans;
(11) Plug testing plans;
(12) Casing removal (including information on explosives, if used);
(13) Proposed casing removal depth; and
(14) Your plans to protect archaeological and sensitive biological features during plugging operations, including a brief assessment of the environmental impacts of the plugging operations and the procedures and
You must notify the appropriate District Supervisor at least 48 hours before beginning operations to permanently plug a well.
You must ensure that all well plugs:
(a) Provide downhole isolation of hydrocarbon and sulphur zones;
(b) Protect freshwater aquifers; and
(c) Prevent migration of formation fluids within the wellbore or to the seafloor.
(a) You must permanently plug wells according to the table in this section. The District Supervisor may require additional well plugs as necessary.
(b) You must test the first plug below the surface plug and all plugs in lost circulation areas that are in open hole. The plug must pass one of the following tests to verify plug integrity:
(1) A pipe weight of at least 15,000 pounds on the plug; or
(2) A pump pressure of at least 1,000 pounds per square inch. Ensure that the pressure does not drop more than 10 percent in 15 minutes. The District Supervisor may require you to tests other plug(s).
(a) Unless the District Supervisor approves an alternate depth under paragraph (b) of this section, you must remove all wellheads and casings to at least 15 feet below the mud line.
(b) The District Supervisor may approve an alternate removal depth if:
(1) The wellhead or casing would not become an obstruction to other users of the seafloor or area, and geotechnical and other information you provide demonstrate that erosional processes capable of exposing the obstructions are not expected; or
(2) You determine, and MMS concurs, that you must use divers, and the seafloor sediment stability poses safety concerns; or
(3) The water depth is greater than 800 meters (2,624 feet).
Within 30 days after you permanently plug a well, you must submit form MMS-124, Sundry Notices and Reports
(a) Information included in § 250.1712 with a final well schematic;
(b) Description of the plugging work;
(c) Nature and quantities of material used in the plugs; and
(d) If you cut and pulled any casing string, the following information:
(1) A description of the methods used (including information on explosives, if used);
(2) Size and amount of casing removed; and
(3) Casing removal depth.
You may temporarily plug a well when it is necessary for proper development and production of a lease. To temporarily plug a well, you must do all of the following:
(a) Submit form MMS-124, Sundry Notices and Reports on Wells, and the applicable information required by § 250.1712 to the appropriate District Supervisor and receive approval;
(b) Adhere to the plugging and testing requirements for permanently plugged wells listed in the table in § 250.1715, except for § 250.1715 (a)(8). You do not need to sever the casings, remove the wellhead, or clear the site;
(c) Set a bridge plug or a cement plug at least 100-feet long at the base of the deepest casing string, unless the casing string has been cemented and has not been drilled out. If a cement plug is set, it is not necessary for the cement plug to extend below the casing shoe into the open hole;
(d) Set a retrievable or a permanent-type bridge plug or a cement plug at least 100 feet long in the inner-most casing. The top of the bridge plug or cement plug must be no more than 1,000 feet below the mud line. MMS may consider approving alternate requirements for subsea wells case-by-case;
(e) Identify and report subsea wellheads, casing stubs, or other obstructions that extend above the mud line according to U.S. Coast Guard (USCG) requirements; and
(f) Except in water depths greater than 300 feet, protect subsea wellheads, casing stubs, mud line suspensions, or other obstructions remaining above the seafloor by using one of the following methods, as approved by the Regional or District Supervisor:
(1) A caisson designed according to 30 CFR 250, subpart I, and equipped with aids to navigation;
(2) A jacket designed according to 30 CFR 250, subpart I, and equipped with aids to navigation; or
(3) A subsea protective device that meets the requirements in § 250.1722.
(g) Within 30 days after you temporarily plug a well, you must submit form MMS-124, Sundry Notices and Reports on Wells (subsequent report), and include the following information:
(1) Information included in § 250.1712 with a well schematic;
(2) Information required by § 250.1717(b), (c), and (d); and
(3) A description of any remaining subsea wellheads, casing stubs, mudline suspension equipment, or other obstructions that extend above the seafloor.
If you install a subsea protective device under § 250.1721(f), you must install it in a manner that allows fishing gear to pass over the obstruction without damage to the obstruction, the protective device, or the fishing gear.
(a) Use form MMS-124, Sundry Notices and Reports on Wells to request approval from the appropriate District Supervisor to install a subsea protective device.
(b) The protective device may not extend more than 10 feet above the seafloor (unless MMS approves otherwise).
(c) You must trawl over the protective device when you install it (adhere to the requirements at § 250.1740(a)). If the trawl does not pass over the protective device or causes damage to it, you must notify the appropriate District Supervisor within 5 days and perform remedial action within 30 days of the trawl;
(d) Within 30 days after you complete the trawling test described in paragraph (c) of this section, submit a report to the appropriate District Supervisor using form MMS-124, Sundry Notices and Reports on Wells, that includes the following:
(1) The date(s) the trawling test was performed and the vessel that was used;
(2) A plat at an appropriate scale showing the trawl lines;
(3) A description of the trawling operation and the net(s) that were used;
(4) An estimate by the trawling contractor of the seafloor penetration depth achieved by the trawl;
(5) A summary of the results of the trawling test including a discussion of any snags and interruptions, a description of any damage to the protective covering, the casing stub or mud line suspension equipment, or the trawl, and a discussion of any snag removals requiring diver assistance; and
(6) A letter signed by your authorized representative stating that he/she witnessed the trawling test.
(e) If a temporarily abandoned well is protected by a subsea device installed in a water depth less than 100 feet, mark the site with a buoy installed according to the USCG requirements.
(f) Provide annual reports to the Regional Supervisor describing your plans to either re-enter and complete the well or to permanently plug the well.
(g) Ensure that all subsea wellheads, casing stubs, mud line suspensions, or other obstructions in water depths greater than 300 feet remain protected.
(1) To confirm that the subsea protective covering remains properly installed, either conduct a visual inspection or perform a trawl test at least annually.
(2) If the inspection reveals that a casing stub or mud line suspension is no longer properly protected, or if the trawl does not pass over the subsea protective covering without causing damage to the covering, the casing stub or mud line suspension equipment, or the trawl, notify the appropriate District Supervisor within 5 days, and perform the necessary remedial work within 30 days of discovery of the problem.
(3) In your annual report required by paragraph (f) of this section, include the inspection date, results, and method used and a description of any remedial work you will perform or have performed.
(h) You may request approval to waive the trawling test required by paragraph (c) of this section if you plan to use either:
(1) A buoy with automatic tracking capabilities installed and maintained according to USCG requirements at 33 CFR part 67 (or its successor); or
(2) A design and installation method that has been proven successful by trawl testing of previous protective devices of the same design and installed in areas with similar bottom conditions.
If you or MMS determines that continued maintenance of a well in a temporarily plugged status is not necessary for the proper development or production of a lease, you must:
(a) Promptly and permanently plug the well according to § 250.1715;
(b) Remove any casing stub or mud line suspension equipment and any subsea protective covering. You must submit a request for approval to perform such work to the appropriate District
(c) Clear the well site according to § 250.1740 through § 250.1742.
(a) You must remove all platforms and other facilities within 1 year after the lease or pipeline right-of-way terminates, unless you receive approval to maintain the structure to conduct other activities. Platforms include production platforms, well jackets, single-well caissons, and pipeline accessory platforms.
(b) Before you may remove a platform or other facility, you must submit a final removal application to the Regional Supervisor for approval and include the information listed in § 250.1727.
(c) You must remove a platform or other facility according to the approved application.
(d) You must flush all production risers with seawater before you remove them.
(e) You must notify the Regional Supervisor at least 48 hours before you begin the removal operations.
An initial platform removal application is required only for leases in the Pacific OCS Region or the Alaska OCS Region. It must include the following information:
(a) Platform or other facility removal procedures, including the types of vessels and equipment you will use;
(b) Facilities (including pipelines) you plan to remove or leave in place;
(c) Platform or other facility transportation and disposal plans;
(d) Plans to protect marine life and the environment during decommissioning operations, including a brief assessment of the environmental impacts of the operations, and procedures and mitigation measures that you will take to minimize the impacts; and
(e) A projected decommissioning schedule.
You must submit a final application to remove a platform or other facility to the Regional Supervisor for approval. This requirement applies to leases in all MMS Regions. If you are proposing to use explosives, provide three copies of the application. If you are not proposing to use explosives, provide two copies of the application. Include the following information in the final removal application, as applicable:
(a) Identification of the applicant including:
(1) Lease operator/pipeline right-of-way holder;
(2) Address;
(3) Contact person and telephone number; and
(4) Shore base.
(b) Identification of the structure you are removing including:
(1) Platform Name/MMS Complex ID Number;
(2) Location (lease/right-of-way, area, block, and block coordinates);
(3) Date installed (year);
(4) Proposed date of removal (Month/Year); and
(5) Water depth.
(c) Description of the structure you are removing including:
(1) Configuration (attach a photograph or a diagram);
(2) Size;
(3) Number of legs/casings/pilings;
(4) Diameter and wall thickness of legs/casings/pilings;
(5) Whether piles are grouted inside or outside;
(6) Brief description of soil composition and condition;
(7) The sizes and weights of the jacket, topsides (by module), conductors, and pilings; and
(8) The maximum removal lift weight and estimated number of main lifts to remove the structure.
(d) A description, including anchor pattern, of the vessel(s) you will use to remove the structure.
(e) Identification of the purpose, including:
(1) Lease expiration/right-of-way relinquishment date; and
(2) Reason for removing the structure.
(f) A description of the removal method, including:
(1) A brief description of the method you will use;
(2) If you are using explosives, the following:
(i) Type of explosives;
(ii) Number and sizes of charges;
(iii) Whether you are using single shot or multiple shots;
(iv) If multiple shots, the sequence and timing of detonations;
(v) Whether you are using a bulk or shaped charge;
(vi) Depth of detonation below the mud line; and
(vii) Whether you are placing the explosives inside or outside of the pilings;
(3) If you will use divers or acoustic devices to conduct a pre-removal survey to detect the presence of turtles and marine mammals, a description of the proposed detection method; and
(4) A statement whether or not you will use transducers to measure the pressure and impulse of the detonations.
(g) Your plans for transportation and disposal (including as an artificial reef) or salvage of the removed platform.
(h) If available, the results of any recent biological surveys conducted in the vicinity of the structure and recent observations of turtles or marine mammals at the structure site.
(i) Your plans to protect archaeological and sensitive biological features during removal operations, including a brief assessment of the environmental impacts of the removal operations and procedures and mitigation measures you will take to minimize such impacts.
(j) A statement whether or not you will use divers to survey the area after removal to determine any effects on marine life.
(a) Unless the Regional Supervisor approves an alternate depth under paragraph (b) of this section, you must remove all platforms and other facilities (including templates and pilings) to at least 15 feet below the mud line.
(b) The Regional Supervisor may approve an alternate removal depth if:
(1) The remaining structure would not become an obstruction to other users of the seafloor or area, and geotechnical and other information you provide demonstrate that erosional processes capable of exposing the obstructions are not expected; or
(2) You determine, and MMS concurs, that you must use divers and the seafloor sediment stability poses safety concerns; or
(3) The water depth is greater than 800 meters (2,624 feet).
Within 30 days after you remove a platform or other facility, you must submit a written report to the Regional Supervisor that includes the following:
(a) A summary of the removal operation including the date it was completed;
(b) A description of any mitigation measures you took; and
(c) A statement signed by your authorized representative that certifies that the types and amount of explosives you used in removing the platform or other facility were consistent with those
The Regional Supervisor may grant a departure from the requirement to remove a platform or other facility by approving partial structure removal or toppling in place for conversion to an artificial reef or other use if you meet the following conditions:
(a) The structure becomes part of a State artificial reef program, and the responsible State agency acquires a permit from the U.S. Army Corps of Engineers and accepts title and liability for the structure; and
(b) You satisfy any U.S. Coast Guard (USCG) navigational requirements for the structure.
Within 60 days after you permanently plug a well or remove a platform or other facility, you must verify that the site is clear of obstructions by using one of the following methods:
(a) For a site in water depths less than 300 feet, you must drag a trawl over the site.
(b) For a well site in water depths 300 feet or more, you may:
(1) Drag a trawl over the site;
(2) Scan across the location using sonar equipment;
(3) Inspect the site using a diver;
(4) Videotape the site using a camera on a remotely operated vehicle (ROV); or
(5) Use another method approved by the District Supervisor if the particular site conditions warrant.
(c) For a platform or other facility site in water depths 300 feet or more, you may:
(1) Drag a trawl over the site;
(2) Scan across the site using sonar equipment; or
(3) Use another method approved by the District Supervisor if the particular site conditions warrant.
If you drag a trawl across the site in accordance with § 250.1740, you must meet all of the requirements of this section.
(a) You must drag the trawl in a grid-like pattern as shown in the following table:
(b) You must trawl 100 percent of the limits described in § 250.1741 in two directions.
(c) You must mark the area to be cleared as a hazard to navigation according to USCG requirements until you complete the site clearance procedures.
(d) You must use a trawling vessel equipped with a calibrated navigational positioning system capable of providing position accuracy of ±30 feet.
(e) You must use a trawling net that is representative of those used in the commercial fishing industry (one that has a net strength equal or greater than that provided by No. 18 twine).
(f) You must ensure that you trawl no closer than 300 feet from a shipwreck, and 500 feet from a sensitive biological feature.
(g) If you trawl near an active pipeline, you must meet the requirements in the following table:
(h) You must ensure that any trawling contractor you may use:
(1) Has no corporate or other financial ties to you; and
(2) Has a valid commercial trawling license for both the vessel and its captain.
If you do not trawl a site, you can verify that the site is clear of obstructions by using any of the methods shown in the following table:
(a) For a well site, you must submit to the appropriate District Supervisor within 30 days after you complete the verification activities a form MMS-124, Sundry Notices and Reports on Wells, to include the following information:
(1) A signed certification that the well site area is cleared of all obstructions;
(2) The date the verification work was performed and the vessel used;
(3) The extent of the area surveyed;
(4) The survey method used;
(5) The results of the survey, including a list of any debris removed or a statement from the trawling contractor that no objects were recovered; and
(6) A post-trawling job plot or map showing the trawled area.
(b) For a platform or other facility site, you must submit the following information to the appropriate District Supervisor within 30 days after you complete the verification activities:
(1) A letter signed by an authorized company official certifying that the platform or other facility site area is cleared of all obstructions and that a company representative witnessed the verification activities;
(2) A letter signed by an authorized official of the company that performed the verification work for you certifying that they cleared the platform or other facility site area of all obstructions;
(3) The date the verification work was performed and the vessel used;
(4) The extent of the area surveyed;
(5) The survey method used;
(6) The results of the survey, including a list of any debris removed or a statement from the trawling contractor that no objects were recovered; and
(7) A post-trawling job plot or map showing the trawled area.
You may decommission a pipeline in place when the Regional Supervisor determines that the pipeline does not constitute a hazard (obstruction) to navigation and commercial fishing operations, unduly interfere with other uses of the OCS, or have adverse environmental effects.
You must do the following to decommission a pipeline in place:
(a) Submit a pipeline decommissioning application in triplicate to the Regional Supervisor for approval that includes the following information:
(1) Reason for the operation;
(2) Proposed decommissioning procedures;
(3) Length (feet) of segment to be decommissioned; and
(4) Length (feet) of segment remaining.
(b) Pig the pipeline, unless the Regional Supervisor determines that pigging is not practical;
(c) Flush the pipeline;
(d) Fill the pipeline with seawater;
(e) Cut and plug each end of the pipeline;
(f) Bury each end of the pipeline at least 3 feet below the seafloor or cover each end with protective concrete mats, if required by the Regional Supervisor; and
(g) Remove all pipeline valves and other fittings that could unduly interfere with other uses of the OCS.
Before removing a pipeline, you must:
(a) Submit a pipeline removal application in triplicate to the Regional Supervisor for approval that includes the following information:
(1) Proposed removal procedures;
(2) If the Regional Supervisor requires it, a description, including anchor pattern(s), of the vessel(s) you will use to remove the pipeline;
(3) Length (feet) to be removed;
(4) Length (feet) of the segment that will remain in place;
(5) Plans for transportation of the removed pipe for disposal or salvage;
(6) Plans to protect archaeological and sensitive biological features during removal operations, including a brief assessment of the environmental impacts of the removal operations and procedures and mitigation measures that you will take to minimize such impacts; and
(7) Projected removal schedule and duration.
(b) Pig the pipeline, unless the Regional Supervisor determines that pigging is not practical; and
(c) Flush the pipeline.
Within 30 days after you decommission a pipeline, you must submit a written report to the Regional Supervisor that includes the following:
(a) A summary of the decommissioning operation including the date it was completed;
(b) A description of any mitigation measures you took; and
(c) A statement signed by your authorized representative that certifies that the pipeline was decommissioned according to the approved application.
You must remove a pipeline decommissioned in place if the Regional Supervisor determines that the pipeline is an obstruction.
42 U.S.C. 6213, 43 U.S.C. 1331
This competition is for organizations that are defined in the
The Department is not bound by any estimates in this notice.
(1) Provide to the participants from eligible countries—
(A) Seminars on the basic principles of United States constitutional democracy, including seminars on the major governmental institutions and systems in the United States, and visits to such institutions;
(B) Visits to school systems, institutions of higher education, and nonprofit organizations conducting exemplary programs in civics and government education in the United States;
(C) Translations and adaptations with respect to United States civics and government education curricular programs for students and teachers, and in the case of training programs for teachers, translations and adaptations into forms useful in school in eligible countries, and joint research projects in such areas; and
(D) Independent research and evaluation assistance—
(i) To determine the effects of the cooperative education exchange programs on students' development of the knowledge, skills, and traits of character essential for the preservation and improvement of constitutional democracy; and
(2) provide to the participants from the United States—
(A) Seminars on the histories and systems of government of eligible countries;
(B) Visits to school systems, institutions of higher education, and organizations conducting exemplary programs in civics and government education located in eligible countries;
(C) Assistance from educators and scholars in eligible countries in the development of curricular materials on the histories and governments of such countries that are useful in the United States classrooms;
(D) Opportunities to provide onsite demonstrations of United States curricula and pedagogy for educational leaders in eligible countries; and
(E) Independent research and evaluation assistance to determine—
(i) The effects of the Cooperative Education Exchange Programs assisted under this section on students' development of the knowledge, skills, and traits of character essential for the preservation and improvement of constitutional democracy; and
(3) Assist participants from eligible countries and the United States to participate in international conferences on civics and government education for educational leaders, teacher trainers, scholars in related disciplines, and educational policymakers.
Rita Foy Moss, U.S. Department of Education, 555 New Jersey Avenue, NW, room 510, Washington, DC 20208-5573. Telephone: (202) 219-2079 or via Internet
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Office of Special Education and Rehabilitative Services, Department of Education.
Request for written comments.
The Assistant Secretary invites written comments suggesting priorities for research centers and projects administered by the National Institute on Disability and Rehabilitation Research (NIDRR) under title II of the Rehabilitation Act of 1973, as amended (the Act). We encourage individuals to suggest research priorities that are consistent with NIDRR's Long-Range Plan (the Plan) and that support the New Freedom Initiative (NFI).
We would like to receive your written comments suggesting priorities on or before July 16, 2002.
Address all comments to Joel Myklebust, U.S. Department of Education, 400 Maryland Avenue, SW., room 3422, Switzer Building, Washington, DC 20202-2645. Fax: (202) 205-8515. If you prefer to send your comments through the Internet, use the following address:
During and after the comment period, you may inspect all public comments about these priorities in room 3422, Switzer Building, 330 C Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
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Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
NIDRR is interested in suggestions for research priorities that are consistent with the research areas, needs, and target populations addressed in the Plan.
The Plan aims to maximize independence and participation in society by individuals with disabilities. The Plan addresses priorities in five major research areas: (1) Employment outcomes; (2) health and function; (3) technology for access and function; (4) independent living and community integration; and (5) associated disability research areas, including but not limited to, knowledge dissemination and utilization, and capacity building for rehabilitation research.
The Plan addresses a range of diverse needs and target populations, including the following:
• The needs of individuals with disabilities for knowledge and information that will enable them to achieve their aspirations for self-direction, independence, inclusion, and functional competence.
• The needs of rehabilitation service providers for information on new techniques and technologies that will enable them to assist in the rehabilitation of individuals with disabilities.
• The needs of researchers to advance the capabilities of science as well as the body of scientific knowledge.
• The needs of society, and its leadership, for strategies that will enable it to facilitate the potential contributions of all citizens.
• The need to transfer findings from basic to applied research.
NIDRR is interested in suggestions for research priorities that will contribute to one or more of the following objectives that support the NFI.
The NFI addresses increasing access to assistive technologies, expanding educational opportunities, increasing the ability of individuals with disabilities to integrate into the workforce, and promoting increased access into daily community life.
Objectives that support the NFI are the following:
• Increasing access to assistive and universally designed technologies.
• Expanding educational opportunities for individuals with disabilities.
• Integrating individuals with disabilities into the workforce.
• Expanding telecommuting.
• Promoting innovative transportation solutions.
• Promoting full access to community life.
• Promoting homeownership for individuals with disabilities.
• Promoting the successful implementation of the Olmstead Decision.
• Improving America's mental health service delivery system.
• Increasing the availability and delivery of new treatments and technologies for individuals with severe mental illness.
• Improving the accessibility of organizations that are currently exempt from Title III of the ADA, such as churches, mosques, synagogues, and civic organizations.
• Improving access to polling places and ballot secrecy for individuals with disabilities.
The Plan can be accessed on the Internet at the following site:
The NFI can be accessed on the Internet at the following site:
Individuals who are unable to access the Internet may obtain copies of the Plan and the NFI by contacting the person listed under
We recommend that your written comments be no longer than two single-spaced pages. We recommend that your comments include the following information:
(1) A brief background statement that identifies the target population, describes the problem or issue that would be addressed, and summarizes the current state of the research.
(2) A description of the research project or projects that would address the identified problem or issue.
(3) An estimate of the amount of the annual award and the number of years (5 years or less) that a grantee would need to carry out the suggested research.
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