Cooperative State Research, Education, and Extension Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Fiscal Service
Centers for Disease Control and Prevention
Health Resources and Services Administration
National Institutes of Health
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Citizenship and Immigration Services Bureau
Coast Guard
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Federal Emergency Management Agency
Indian Affairs Bureau
Occupational Safety and Health Administration
Fiscal Service
United States Sentencing Commission
Federal Aviation Administration
Federal Railroad Administration
Federal Transit Administration
Fiscal Service
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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National Ocean Service (NOS), National Marine Sanctuary Program.
Temporary rule.
The National Oceanic and Atmospheric Administration (NOAA) issues a temporary rule prohibiting all entry into two areas off the east side of Key Largo within federal waters of the Florida Keys National Marine Sanctuary. The combined areas are approximately 0.50 square miles in size. This temporary rule is necessary to prevent injury to, and destruction of, living coral from stress to diseased coral within the close areas, and to protect healthy coral from human-caused contamination.
Entry is prohibited effective June 26, 2003 until August 25, 2003.
Billy D. Causey, Superintendent, Florida Keys National Marine Sanctuary (FKNMS), Post Office Box 500368, Marathon, Florida 33050, (305) 743-2437.
NOAA is by this rule immediately prohibiting all entry into two areas off of Key Largo within federal waters of the Florida Keys National Marine Sanctuary (FKNMS). This action is taken in accordance with 15 CFR 922.165 of the FKNMS regulations (62 FR 32154, June 12, 1997). Section 922.165 provides that, where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource, any and all activities are subject to immediate temporary regulation, including prohibition, for up to 60 days, with one 60-day extension.
This temporary rule is necessitated by the recent discovery of an outbreak of a rapidly-spreading infectious coral disease in parts of the Florida Keys that is killing staghorn coral (
This emergency action establishes no-entry zones to quarantine two currently infected coral patch areas that are popular with swimmers and snorkelers visiting the Sanctuary. It is possible that humans entering the waters of the affected areas could inadvertently carry infectious agents to healthy coral reef areas. Infected corals are also more subject to stress from human activities. This action is intended to limit the innocent spread of infectious agents to health coral and to reduce stress to corals within the infected areas.
This temporary rule closes two ares, each approximately 0.25 square miles in size, to all entry by humans and vessels except pursuant to a valid scientific research permit. The areas are part of White Bank Dry Rocks off of Key Largo and are referred to for the purpose of this rule as “White Bank North Patch” and “White Bank South Patch”. The locations by coordinates of the closed areas are set forth below.This rule prohibits all activities that are currently allowed in the areas, including transiting and fishing. Vessels greater than 50 meters in length are already prohibited from entering the areas by regulations establishing Areas to be Avoided (15 CFR 922.164(a)).
Effective immediately, all entry is prohibited within the closed areas of White Bank Dry Rocks off of Key Largo. The coordinates of the areas are:
Pursuant to 15 CFR 992.45, any violation of this rule is subject to a maximum civil penalty of $120,000 per violation per day. Furthermore, the NMSA and regulations authorize a proceeding in rem against any vessel used in violation of any such regulation.
Under 5 U.S.C. 553(b)(B), the Assistant Administrator of the National Ocean Service, NOAA, for good cause, finds that providing prior notice and public procedure thereon with respect to this rule is impracticable and contrary to the public interest. Recent evidence has come to light of an outbreak of infectious coral disease in areas of White Bank Dry Rocks near Key Largo. It is possible that humans entering the waters of the affected areas could inadvertently carry infectious agents to healthy coral reef areas. Infected corals are also more subject to stress from human activities. This action is intended to limit the innocent spread of infectious agents to healthy coral and to reduce stress to corals within the infected areas. As such, further damage to the infected corals as well as to healthy corals outside of the close areas would occur if the prohibition implemented by this rule is delayed to provide prior notice and opportunity for public comment.
Likewise, under 5 U.S.C. 553(d)(3), the Assistant Administrator of the National Ocean Service, NOAA, finds good cause to waive the 30-day delay in effective date for this rule. First, if the rule is delayed for 30 days, significant damage to the living coral resources could result. Further, 30 days are not necessary to give notification to visitors who might use the area in the future to move to other nearby sites. The U.S. Coast Guard will give Location immediate notification to vessels to stay
The Office of Management and Budget (OMB) has concurred that this rule is not significant within the meaning of section 3(f) of Executive Order 12866.
NOAA has concluded that this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 12612.
Because this rule is not required to be issued with prior notice and opportunity for public comment by 5 U.S.C. 553 or by any other law, it is not subject to the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
This rule does not impose an information collection requirement subject to review and approval by OMB under the Paperwork Reduction Act of 1980, 44 U.S.C. 3500
Commodity Futures Trading Commission.
Order.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is granting an exemption to firms designated by the ASX Futures Exchange Party Limited (“ASXF”) from the application of certain of the Commission's foreign futures and option rules based on substituted compliance with certain comparable regulatory and self-regulatory requirements of a foreign regulatory authority consistent with conditions specified by the Commission, as set forth herein. This Order is issued pursuant to Commission Rule 30.10, which permits persons to file a petition with the Commission for exemption from the application of certain of the rules set forth in part 30 and authorizes the Commission to grant such an exemption if such action would not be otherwise contrary to the public interest or to the purposes of the provision from which exemption is sought.
July 1, 2003.
Lawrence B. Patent, Esq., Deputy Director, Susan A. Elliott, Esq., Staff Attorney, or Andrew V. Chapin, Esq., Staff Attorney, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5430.
The Commission has issued the following Order:
Order Under CFTC Rule 30.10 Exempting Firms Designated by the ASX Futures Exchange Party Limited (“ASXF”) From the Application of Certain of the Foreign Futures and Option Rules the Later of the Date of Publication of the Order Herein in the
Commission rules governing the offer and sale of commodity futures and option contracts traded on or subject to the rules of a foreign board of trade to customers located in the U.S. are contained in part 30 of the Commission's rules.
In formulating a regulatory program to govern the offer and sale of foreign futures and option products to customers located in the U.S., the Commission, among other things, considered the desirability of ameliorating the potential extraterritorial impact of such a program and avoiding duplicative regulation of firms engaged in international business. Based upon these considerations, the Commission determined to permit persons located outside the U.S. and subject to a comparable regulatory structure in the jurisdiction in which they were located to seek an exemption from certain of the requirements under part 30 of the Commission's rules based upon substituted compliance with the regulatory requirements of the foreign jurisdiction.
Appendix A to part 30, “Interpretative Statement With Respect to the Commission's Exemptive Authority Under 30.10 of Its Rules” (“Appendix A”), generally sets forth the elements the Commission will evaluate in determining whether a particular regulatory program may be found to be comparable for purposes of exemptive relief pursuant to Rule 30.10.
Moreover, the Commission specifically stated in adopting Rule 30.10 that no exemption of a general nature would be granted unless the persons to whom the exemption is to be applied: (1) Submit to jurisdiction in the U.S. by designating an agent for service of process in the U.S. with respect to transactions subject to part 30 and filing a copy of the agency agreement with the National Futures Association (“NFA”); (2) agree to provide access to their books and records in the U.S. to Commission and Department of Justice representatives; and (3) notify NFA of the commencement of business in the U.S.
By letter dated March 6, 2002, ASXF petitioned the Commission on behalf of its Participants (“firms”), located and doing business in Australia, for an exemption from the application of the Commission's part 30 rules to those firms. In support of its petition, ASXF states that granting such an exemption with respect to such firms that it has authorized to conduct foreign futures and options transactions on behalf of customers located in the U.S. would not be contrary to the public interest or to the purposes of the provisions from which the exemption is sought because such firms are subject to a regulatory framework comparable to that imposed by the Commodity Exchange Act (“Act”) and the rules thereunder.
Based upon a review of the petition, supporting materials filed by ASXF and the recommendation of the Commission's staff, the Commission has concluded that the standards for relief set forth in Rule 30.10 and, in particular, Appendix A thereof, have been met and that compliance with applicable Australian law and ASXF rules may be substituted for compliance with those sections of the Act and rules thereunder more particularly set forth herein.
By this Order, the Commission hereby exempts, subject to specified conditions, those firms identified to the Commission by ASXF as eligible for the relief granted herein from:
This determination to permit substituted compliance is based on, among other things, the Commission's finding that the regulatory scheme governing persons in Australia who would be exempted hereunder provides:
(1) A system of qualification or authorization of firms who deal in transactions subject to regulation under Part 30 that includes, for example, criteria and procedures for granting, monitoring, suspending and revoking licenses, and provisions for requiring and obtaining access to information about authorized firms and persons who act on behalf of such firms;
(2) Financial requirements for firms including, without limitation, a requirement for a minimum level of working capital and daily mark-to-market settlement and/or accounting procedures;
(3) A system for the protection of customer assets that is designed to preclude the use of customer assets to satisfy house obligations and requires separate accounting for such assets;
(4) Recordkeeping and reporting requirements pertaining to financial and trade information;
(5) Sales practice standards for authorized firms and persons acting on their behalf that include, for example, required disclosures to prospective customers and prohibitions on improper trading advice;
(6) Procedures to audit for compliance with, and to redress violations of, the customer protection and sales practice requirements referred to above, including, without limitation, an affirmative surveillance program designed to detect trading activities that take advantage of customers, and the existence of broad powers of investigation relating to sales practice abuses; and
(7) Mechanisms for sharing of information between the Commission, ASXF, and the Australian regulatory authorities on an “as needed” basis including, without limitation, confirmation data, data necessary to trace funds related to trading futures products subject to regulation in Australia, position data, and data on firms' standing to do business and financial condition.
This Order does not provide an exemption from any provision of the Act or rules thereunder not specified herein, such as the antifraud provision in Rule 30.9. Moreover, the relief granted is limited to brokerage activities undertaken on behalf of customers located in the U.S. with respect to transactions on or subject to the rules of ASXF for products that customers located in the U.S. may trade.
The eligibility of any firm to seek relief under this exemptive Order is subject to the following conditions:
(1) The regulatory or self-regulatory organization responsible for monitoring the compliance of such firms with the regulatory requirements described in the Rule 30.10 petition must represent in writing to the CFTC
(a) Each firm for which relief is sought is registered, licensed or authorized, as appropriate, and is otherwise in good standing under the standards in place in Australia; such firm is engaged in business with customers in Australia as well as in the U.S.; and such firm and its principals and employees who engage in activities subject to part 30 would not be statutorily disqualified from registration under Section 8a(2) of the Act, 7 U.S.C. 12a(2);
(b) It will monitor firms to which relief is granted for compliance with the regulatory requirements for which substituted compliance is accepted and will promptly notify the Commission or NFA of any change in status of a firm that would affect its continued eligibility for the exemption granted hereunder, including the termination of its activities in the U.S.;
(c) All transactions with respect to customers resident in the U.S. will be made on or subject to the rules of ASXF and the Commission will receive prompt notice of all material changes to the relevant laws in Australia, any rules promulgated thereunder and ASXF rules;
(d) Customers located in the U.S. will be provided no less stringent regulatory protection than Australian customers under all relevant provisions of Australian law; and
(e) It will cooperate with the Commission with respect to any inquiries concerning any activity subject to regulation under the part 30 rules, including sharing the information specified in Appendix A on an “as needed” basis and will use its best efforts to notify the Commission if it becomes aware of any information that in its judgment affects the financial or operational viability of a member firm doing business in the U.S. under the exemption granted by this Order.
(2) Each firm seeking relief hereunder must represent in writing that it:
(a) Is located outside the U.S., its territories and possessions, and where applicable, has subsidiaries or affiliates domiciled in the U.S. with a related business (
(b) Consents to jurisdiction in the U.S. under the Act by filing a valid and binding appointment of an agent in the U.S. for service of process in accordance with the requirements set forth in Rule 30.5;
(c) Agrees to provide access to its books and records related to transactions under part 30 required to be maintained under the applicable statutes and regulations in effect in Australia upon the request of any representative of the Commission or U.S. Department of Justice at the place in the U.S. designated by such representative, within 72 hours, or such lesser period of time as specified by that representative as may be reasonable under the circumstances after notice of the request;
(d) Has no principal or employee who solicits or accepts orders from customers located in the U.S., who would be disqualified under Section 8a(2) of the Act, 7 U.S.C. 12a(2), from doing business in the U.S.;
(e) Consents to participate in any NFA arbitration program that offers a procedure for resolving customer disputes on the papers where such disputes involve representations or activities with respect to transactions under part 30, and consents to notify customers located in the U.S. of the availability of such a program;
(f) Undertakes to comply with the applicable provisions of Australian laws and ASXF rules that form the basis upon which this exemption from certain provisions of the Act and rules thereunder is granted; and
(g) Maintains the greater of regulatory capital as required by ASXF or four percent of funds segregated on behalf of customers resident in the United States.
As set forth in the Commission's September 11, 1997 Order delegating to NFA certain responsibilities, the written representations set forth in paragraph (2) shall be filed with NFA.
As requested in the ASXF Petition,
(1) ASXF will carry out its compliance, surveillance and rule enforcement activities with respect to solicitations and acceptance of orders by designated ASXF members of U.S. customers for futures business on Recognized Futures Exchanges, as defined in section 9(b) of the CL,
(2) ASXF will cooperate with the Commission with respect to any inquiries concerning any activity that relates to expanded relief, including sharing the information specified in Appendix A to the part 30 rules on an “as needed” basis, on the same basis as set forth in the part 30 relief conditions of this Order; and
(3) Each ASXF member firm confirmed for rule 30.10 relief seeking to engage in activities that are the subject of this Order must agree to provide the books and records related to such transactions required to be maintained under the applicable statutes, regulations, and Exchange rules in effect in Australia, on the same basis as set forth in the part 30 relief conditions of this Order.
With respect to transactions effected on behalf of U.S. customers on any non-U.S. futures and options exchange other than SFE and ASXF, whether by the ASXF firm directly as a clearing member of such other exchange or through the intermediation of one or more intermediaries, each ASXF firm must use the following procedures, consistent with the requirements applicable to Commission registered FCMs concerning the protection of customer funds under the provisions of Commission rule 30.7:
(a) Comply with the terms and procedures of Commission rule 30.7, with the amount required to be segregated under ASXF rules and Australian laws to be substituted for the secured amount requirement as set forth in such paragraphs.
OR
(b)(1) Maintain in a separate account or accounts money, securities and property in an amount denominated as the foreign futures or foreign options secured amount in an amount sufficient to satisfy all of its current obligations to U.S. customers;
(2) Not commingle such money, securities and property with the money, securities or property of the member, or with any proprietary account of such member and not use such money, securities and property to secure or guarantee the obligations of, or extend credit to, the member or any proprietary account of the member;
(3) Deposit, if it wishes, together with the secured amount required to be on deposit in the separate account or accounts referred to in paragraph (b)(1) above money, securities or property held for or on behalf of non-U.S. customers of the member for the purpose of entering into foreign futures and options transactions. If the firm chooses to do so, the amount that must be deposited in such separate account or accounts must be no less than the greater of (i) the foreign futures and foreign options secured amount required by paragraph (b)(1) above plus the amount that would be required to be on deposit if all such customers (including non-U.S. customers) were subject to such requirement, or (ii) the foreign futures and foreign options secured amount required by paragraph (b)(1) above plus the amount required to be held in a separate account or accounts for or on behalf of such non-U.S. customers pursuant to any applicable law, rule, regulation or order, or any rule of any self-regulatory organization;
(4) Maintain the separate account or accounts referred to in paragraph (b)(1) above under an account name that clearly identifies them as such, with any of the following depositories:
(i) Another person registered with the Commission as an FCM or a firm exempted from FCM registration pursuant to CFTC rule 30.10;
(ii) The clearing organization of any foreign board of trade;
(iii) Any member and/or clearing member of such foreign board of trade; or
(iv) A bank or trust company which any of the depositories identified in (i)-(iii) above may use consistent with the applicable laws and rules of the jurisdiction in which the depository is located;
(5) Obtain and retain in its files for the period required by applicable law and Exchange rules an acknowledgment from a
(6) Provide each foreign futures and foreign options customer with one of the written disclosure statements in (A), (B), or (C) below:
(A) Foreign futures transactions involve executing and clearing trades on a foreign exchange. This is the case even if the foreign exchange is formally “linked” to a domestic exchange whereby a trade executed on one exchange liquidates or establishes a position on the other exchange. No domestic organization regulates the activities of a foreign exchange, including the execution, delivery and clearing of transactions on such exchange, and no domestic regulator has the power to compel enforcement of the rules of the foreign exchange or the laws of the foreign country in which the transaction occurs. For these reasons, customers who trade on foreign exchanges may not be afforded certain of the protections that apply to domestic transactions, including the right to use alternative dispute resolution. In particular, funds received from customers to margin foreign futures transactions may not be provided the same protections as funds received to margin futures transactions on domestic exchanges. Before you trade, you should familiarize yourself with the foreign rules that will apply to your particular transaction.
OR
(B) You should familiarize yourself with the protections accorded money or property you deposit for domestic and foreign transactions, particularly in the event of a firm insolvency or bankruptcy. The extent to which you may recover your money or property may be governed by specified legislation or local rules. In some jurisdictions, property that has been specifically identifiable as your own will be pro-rated in the same manner as cash for purposes of distribution in the event of a shortfall.
Transactions on markets in other jurisdictions, including markets formally linked to a domestic market, may expose you to additional risk. Such markets may be subject to regulation that may offer different or diminished investor protection. Before you trade you should enquire about any rules relevant to your particular transactions. Your local regulatory authority will be unable to compel the enforcement of the rules of the regulatory authorities or markets in other jurisdictions where your transactions have been effected. You should ask the firm with which you deal for details about the types of redress available in both your home jurisdiction and other relevant jurisdictions before you start to trade.
OR
(C) A comparable disclosure statement prescribed by ASXF.
This Order will become effective as to any designated ASXF firm the later of the date of publication of the Order in the
This Order is issued pursuant to Rule 30.10 based on the representations made and supporting material provided to the Commission and the recommendation of the staff, and is made effective as to any firm granted relief hereunder based upon the filings and representations of such firms required hereunder. Any material changes or omissions in the facts and circumstances pursuant to which this Order is granted might require the Commission to reconsider its finding that the standards for relief set forth in Rule 30.10 and, in particular, Appendix A, have been met. Further, if experience demonstrates that the continued effectiveness of this Order in general, or with respect to a particular firm, would be contrary to public policy or the public interest, or that the systems in place for the exchange of information or other circumstances do not warrant continuation of the exemptive and expanded relief granted herein, the Commission may condition, modify, suspend, terminate, withhold as to a specific firm, or otherwise restrict the exemptive or expanded relief granted in this Order, as appropriate, on its own motion.
The Commission will continue to monitor the implementation of its program to exempt firms located in jurisdictions generally deemed to have a comparable regulatory program from the application of certain of the foreign futures and option rules and will make necessary adjustments if appropriate.
Railroad Retirement Board.
Final rule.
The Board amends its regulations to update the references regarding age required for eligibility for an annuity and for the application of work deductions.
Full retirement age is no longer age 65, but instead ranges from age 65 for those born before 1938 to age 67 for those born in 1960 or later. The Board amends its regulations to replace obsolete references to “age 65” with a reference to “retirement age'.
This rule is effective July 1, 2003.
For information specifically about this final rule, contact Michael C. Litt, General Attorney, Office of General Counsel, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611-2092, (312) 751-4929, TDD (312) 751-4701.
Section 106 of the Railroad Retirement Solvency Act of 1983, Public Law 98-76, amended the Railroad Retirement Act to replace references to “age 65” with “retirement age (as defined in section 216(l) of the Social Security Act).” Section 216(l) of the Social Security Act defines “retirement age” as follows: with respect to an individual who attains “early retirement age” before January 1, 2000, 65 years of age. “Early retirement age” is defined in the case of old-age, wife's or husband's insurance benefits, as age 62. With respect to individuals who attain early retirement age after December 31, 1999, the retirement age gradually increases.
The amended regulations replace references to “age 65” with the phrase “retirement age” in order to conform the regulations to the above-described amendment.
The Board published the proposed rule on June 17, 2002 (67 FR 41205), and invited comments by August 16, 2002. No comments were received. However, in preparing the rule for publication as a final rule, it was discovered that § 225.33(a)(1) of the Board's regulations also contains a reference to “age 65” that should be replaced by a reference to “full retirement age.” Accordingly, the proposed rule has been redrafted as a final rule to include amendment of that section.
The amendments to these parts do not impose information collection and record keeping requirements. Consequently, the final rule need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
Prior to publication of this final rule, the Board submitted the rule to the Office of Management and Budget for review pursuant to Executive Order 12866. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for rules that constitute significant regulatory action, including rules that have an economic effect of $100 million or more annually. This final rule is not a major rule in terms of the aggregate costs involved. Specifically, we have determined that this final rule is not a major rule with economically significant effects because it would not result in increases in total expenditures of $100 million or more per year.
The amendments made by this final rule are not significant. The amendments to parts 218, 220, and 225 update references regarding the “age” required for eligibility for an annuity and for the application of work deductions. Full retirement age is no longer age 65, but instead ranges from age 65 for those born before 1938 to age 67 for those born in 1960 or later. The Board amends its regulations to replace obsolete references to “age 65” with a reference to “retirement age'.
Both the Regulatory Flexibility Act and the Unfunded Mandates Act of 1995 define “agency” by referencing the definition of “agency” contained in 5 U.S.C. 551(l). Section 551(l)(E) excludes from the term “agency” an agency that is composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them. The Railroad Retirement Board falls within this exclusion (45 U.S.C. 231f(a)) and is therefore exempt from the Regulatory Flexibility Act and the Unfunded Mandates Act.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct compliance 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 and have determined that it would not have a substantial direct effect on the rights, roles, and responsibilities of States or local governments.
In accordance with the provisions of Executive Order 12866, this regulation has been reviewed by the Office of Management and Budget.
Railroad retirement, reporting and recordkeeping requirements.
Railroad retirement.
Railroad retirement.
45 U.S.C. 231f(b)(5).
45 U.S.C. 231a; 45 U.S.C. 231f.
45 U.S.C. 231f(b)(5).
(b) * * *
(3) Employee attains age 65 in 1990 and before 2003.
(i) The rate of the DRC (one-fourth of one percent) is increased by one-twenty-fourth of one percent in each even year through 2002. Therefore, depending on when the employee attains age 65, the DRC percent will be as follows:
(ii) The delayed retirement credit equals the appropriate percent of the PIA times the number of months in which the employee is age 65 or older and for which credit is due.
(4) Employee attains full retirement age in 2003 or later. The rate of the DRC (one-fourth of one percent) is increased
By Authority of the Board.
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains amendments to regulations relating to the requirement under section 274 of the Internal Revenue Code to substantiate business expenses for traveling while away from home. The regulations affect taxpayers who deduct expenditures for incidental expenses while traveling away from home. This document also contains amendments to regulations under section 62 to conform cross-references.
Effective Date: These regulations are effective July 2, 2003.
Sameera Hasan (202) 622-4930 (not a toll free call).
This document contains amendments to 26 CFR part 1. On November 12, 2002, the IRS and Treasury published in the
Written comments from two commentators were received. A commentator initially requested a public hearing but subsequently withdrew the request. No public hearing was held. The comments generally related to implementation of these regulations in future guidance and will be further considered in connection with that guidance. After consideration of the comments, the proposed regulations are adopted by this Treasury decision.
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 is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that these regulations do not require a collection of information and do not impose any new or different requirements on small entities. 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 proposed regulations preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact.
The principal author of these regulations is Sameera Hasan, Office of Associate Chief Counsel (Income Tax & Accounting). However, other personnel from the IRS and Treasury Department participated in the development.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
(e) * * *
(2) * * *
(j) * * *
(3)
(m) * * * However, paragraph (j)(3) of this section applies to expenses paid or incurred after September 30, 2002.
(j) [Reserved]. For further guidance,
Internal Revenue Service (IRS), Treasury.
Final regulation and removal of temporary regulation.
This document contains a final regulation relating to controlled foreign partnerships. This document requires that the United States partner must follow the filing requirements that are specified in the instructions for Form 8865.
Tasheaya L. Warren Ellison, (202) 622-3860 (not a toll-free number).
The collection of information contained in this final regulation has been previously 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 1545-1617.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
The burden of complying with the collection of information required to be reported on Form 8865 is reflected in the burden for Form 8865. The estimated number of respondents is 5000. The estimated burden for the 2001 Form 8865 per respondent is 89 hours.
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:T:T:SP 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 a collection of information must be retained as long as their contents might 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 December 23, 2002, final and temporary regulations (T.D. 9033) relating to the information reporting requirements for U.S. persons with interests in controlled foreign partnerships were published in the
This Treasury decision adopts the language of the proposed regulation without change other than to clarify that Treas. Reg. § 1.6038-3(j) as in effect prior to T.D. 9033 (
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 has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation. It is hereby certified that the collection of information contained in this regulation will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that the number of small entities that will be required to file the form is not substantial. The number of small entities with interests in foreign partnerships is not substantial; therefore, this regulation will not have a significant economic impact on a substantial number of small entities. Additionally, this regulation does not increase the reporting burden for U.S. persons with interests in controlled foreign partnerships. Accordingly, 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 this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments are requested regarding the impact on small businesses.
The principal author of this regulation is Tasheaya Warren Ellison, Office of the Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in its development.
Income taxes, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
(j)
(1)
26 U.S.C. 7805.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the annual Hudson Valley Triathlon swim located on the Hudson River. This action is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in the affected waterway.
This rule is effective from 7:30 a.m. to 9 a.m. on Sunday, July 13, 2003.
Documents indicated in this preamble as being available in the docket are part of docket CGD01-03-053 and are available for inspection or copying at Waterways Oversight Branch, Coast Guard Activities New York, 212 Coast Guard Drive, room 204, Staten Island, NY 10305 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Lieutenant Commander W. Morton, Waterways Oversight Branch, Coast Guard Activities New York (718) 354-4012.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Due to the date the Applications for Approval of Marine Event were received, there was insufficient time to draft and publish an NPRM. An annual safety zone has been published for the Hudson Valley Triathlon swim on the Hudson River in 33 CFR 165.170 effective on the first Sunday after July 4th. The date for this year's event has been moved to the second Sunday after July 4th. The zone will only be enforced for 1
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
The Coast Guard has received an application to hold a triathlon swim on the waters of the Hudson River. This rule establishes a safety zone in all waters of the Hudson River, in the vicinity of Ulster Landing, bound by the following points, (NAD 1983): 42°00′03.7″ N 073°56′43.1″ W; thence to 41°59′52.4″ N 073°56′33.9″ W; thence to 42°00′14.8″ N 073°56′25.0″ W; thence to 42°00′05.4″ N 073°56′41.9″ W; thence along the shoreline to the point of origin. The safety zone will be enforced from 7:30 a.m. until 9 a.m. on Sunday, July 13, 2003. The safety zone prevents vessels from transiting a portion of the Hudson River and Barrytown Reach and is needed to protect swimmers and boaters from the hazards associated with 400 swimmers competing in a confined area of the Hudson River. Recreational vessels can still transit to the east of the zone during the event and will not be precluded from mooring at or getting underway from piers in the vicinity of the zone. Commercial vessels will be precluded from transiting the area because the safety zone encompasses about 800 yards of Barrytown Reach and there is no viable alternative route. Public notifications will be made prior to the event via the Local Notice to Mariners, Marine Information and electronic mail Broadcasts, and on the Internet at
This safety zone covers the minimum area needed and imposes the minimum restrictions necessary to ensure the protection of all swimmers and vessels.
This rule establishes a temporary safety zone for the Hudson Valley Triathlon swim. The safety zone will be in effect for 1
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 Homeland Security (DHS).
This finding is based on: the minimal time that vessels will be restricted from the zone; it is an annual, local event; recreational vessels may still transit to the east of the zone during the event and will not be precluded from mooring at or getting underway from recreational piers in the vicinity of the zone; the zone is only in effect for 1
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Hudson River during the time this zone is activated.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the minimal time that vessels will be restricted from the zone; it is an annual, local event; recreational vessels may still transit to the east of the zone during the event and will not be precluded from mooring at or getting underway from recreational piers in the vicinity of the zone; the zone is only in effect for 1
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this temporary rule so that we 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 Lieutenant Commander E. Morton, Waterways Oversight Branch, Coast Guard Activities New York at (718) 354-4012.
Small business 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 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 of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble
This rule will 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 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 create 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 tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This rule fits paragraph 34(g) as it establishes a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, 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, and 160.5; 49 CFR 1.46.
(a)
(b)
(c)
(2) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene-patrol personnel. These personnel comprise commissioned, warrant, and petty officers of the Coast Guard. Upon being hailed by a U. S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing three temporary safety zones on the navigable waters of San Diego Bay in support of the North San Diego Bay July 4th Fireworks Show. These temporary safety zones are necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within these safety zones unless authorized by the Captain of the Port, or his designated representative.
This rule is effective from 8:30 p.m. until 10 p.m. (PDT) on July 4, 2003.
Documents indicated in this preamble as being available in the docket, are part of docket [COTP San Diego-03-015] and are available for inspection or copying at Marine Safety Office San Diego, 2716 N. Harbor Drive, San Diego, CA 92101-1064 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Petty Officer Austin Murai USCG, c/o U.S Coast Guard Captain of the Port, telephone (619) 683-6495.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. In keeping with the requirements of 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this regulation effective less than 30 days after publication in the
The Coast Guard is establishing three (3) temporary safety zones on the navigable waters of San Diego Bay in support of the North San Diego Bay July 4th Fireworks Show. These temporary safety zones are necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within these safety zones unless authorized by the Captain of the Port, or his designated representative.
These safety zones are necessary for the North San Diego Bay July 4th Fireworks Show, which will take place on July 4, 2003, starting at 8:30 p.m. (PST) and ending at 10 p.m. (PST). The event involves three barges, which will be used as platforms for the launching of fireworks.
The limits of these temporary safety zones are as follows: 300 yards around the following points: 32°42′50″ N, 117°13′12″ W (Shelter Island), 32°43′20″ N, 117°12′14″ W (Harbor Island), and 32°43′10″ N, 117°10′46″ W (North Embarcadero).
These temporary safety zones are necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within these safety zones unless authorized by the Captain of the Port, or his designated representative.
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 Homeland Security (DHS).
Due to the temporary safety zone's short duration of one and one-half (1
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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.
For the same reasons set forth in the above Regulatory Evaluation, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not expected to have a significant economic impact on any substantial number of entities, regardless of size. This rule will 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 North San
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The temporary safety zone's short duration of one and one-half (1
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lt. Commander Rick Sorrell, U.S. Coast Guard Marine Safety Office San Diego at (619) 683-6495.
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, call1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will 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 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 create 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 tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.
Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are required for this rule and a copy can be obtained from the docket.
Harbors Marine safety, Navigation (water), Reporting and recordkeeping requirements, 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, and 160.5; Department of Homeland Security Delegation No. 0170.
(a)
(1) 32°42′50″ N, 117°13′12″ W (Shelter Island).
(2) 32°43′20″ N, 117°12′14″ W (Harbor Island).
(3) 32°43′10″ N, 117°′46″ W (North Embarcadero).
(b)
(c)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of Laughlin, Nevada in support of the Avi Resort and Casino fireworks show. This temporary safety zone is necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within these safety zones unless authorized by the Captain of the Port, or his designated representative.
This rule is effective from 8:30 p.m. until 10 p.m. (PDT) on July 5, 2003.
Documents indicated in this preamble as being available in the docket, are part of docket [COTP San Diego 03-022] and are available for inspection or copying at Marine Safety Office San Diego, 2716 N. Harbor Drive, San Diego, CA 92101-1064 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Petty Officer Austin Murai, USCG, c/o U.S Coast Guard Captain of the Port, telephone (619) 683-6495.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. In keeping with the requirements of 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this regulation effective less than 30 days after publication in the
The Coast Guard is establishing a temporary safety zone on the navigable waters of the Colorado River in Laughlin, Nevada in support of the Avi Resort and Casino fireworks show. The fireworks will be launched from an area on land, however, the fallout area will be over a section of the Colorado River and a safety zone on this section of the river is necessary to provide for the safety of the users of this waterway.
The Coast Guard proposes to establish this temporary rule to provide for the safety of the participants, spectators and other users of the waterways. The temporary safety zone is specifically defined as that portion of the Colorado River 1000 yards north of Veterans Bridge. Persons and vessels will be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.
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 Homeland Security (DHS).
Due to the temporary safety zone's short duration of less than 2 hours, its limited scope of implementation, and because vessels will have an opportunity to request authorization to transit, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10(e) of the regulatory policies and procedures of the DHS is unnecessary.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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.
For the same reasons set forth in the above Regulatory Evaluation, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not expected to have a significant economic impact on any substantial number of entities, regardless of size. This rule will 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 the Colorado River from 8:30 p.m. to 10 p.m. on July 4, 2003.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The temporary safety zone's short duration of one and one-half (
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander Rick Sorrell, U.S. Coast Guard Marine Safety Office San Diego at (619) 683-6495.
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 of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will 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 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 create 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 tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.
Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are required for this rule and can be viewed in the docket.
Harbors, Marine safety, Navigation (water), Reporting and record-keeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191; and 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.
(a)
(b)
(c)
Environmental Protection Agency (EPA).
Notice of meeting.
The Environmental Protection Agency (EPA) will be holding a Clean Diesel Engine Implementation Workshop August 6 and 7 in Chicago, IL. The 2007 highway diesel fuel and engine program (66 FR 5002, January 18, 2001) establishes new standards beginning in 2007 for heavy-duty diesel vehicles and a maximum sulfur content of 15 ppm for highway diesel fuel used in those vehicles beginning in 2006. The purpose of this workshop is to assist regulated entities and other stakeholders, including engine manufacturers, truck manufacturers, truck owners and truck operators, with program implementation and compliance. The workshop is being sponsored by the Engine Manufacturers Association (EMA), the American Trucking Associations (ATA), the Manufactures of Emission Control Association (MECA), the Truck
The workshop will be held on Wednesday, August 6, 2003, and Thursday, August 7, 2003.
The workshop will be held at The Hyatt Regency O'Hare Hotel, 9300 W. Bryn Mawr Avenue, Rosemont, Illinois 60018, phone: (847) 696-1234, fax: (847) 698-0139,
Ms. Julia MacAllister, U.S. EPA, National Vehicle and Fuels Emission Laboratory, Assessment and Standards Division, 2000 Traverwood, Ann Arbor, MI 48105; phone: (734) 214-4131, fax: (734) 214-4816, e-mail:
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are suspended on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will be withdrawn by publication in the
The effective date of each community's suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you wish to determine whether a particular community was suspended on the suspension date, contact the appropriate FEMA Regional Office or the NFIP servicing contractor.
Mike Grimm, Mitigation Division, 500 C Street, SW.; Room 412, Washington, DC 20472, (202) 646-2878.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001
In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
42 U.S.C. 4001
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Interim rule.
This interim rule lists communities where modification of the Base (1-percent-annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Map(s) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Mitigation Division Director of the Emergency Preparedness and Response Directorate reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Mary Jean Pajak, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2831.
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.
The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Final rule.
Base (1% annual chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the FIRM is available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Mary Jean Pajak, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2831.
The Federal Emergency Management Agency makes the final determinations listed below of BFEs and modified BFEs for each community listed. The proposed BFEs and proposed modified BFEs were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed BFEs and proposed modified BFEs were also published in the
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.
FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.
The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
42 U.S.C. 4001
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Inseason action; request for comments.
NMFS announces changes to the regulations for the Area 2A sport halibut fisheries off the south coast of Washington. This action would change the days of the week open to halibut fishing in the Washington south coast recreational fishing subarea. The purpose of this action is to allow increased access to Washington's south coast recreational halibut quota while monitoring yelloweye rockfish interception.
Effective 0001 local time, June 27, 2003, through the
Submit comments to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070. This
Jamie Goen or Yvonne deReynier (NMFS, Northwest Region) 206-526-6140.
The Area 2A Catch Sharing Plan for Pacific halibut off Washington, Oregon, and California is implemented in the annual management measures for the Pacific halibut fisheries published on March 7, 2003 (68 FR 10989, as amended at 68 FR 22323, April 28, 2003 and at 68 FR 23901, May 6, 2003). Those regulations established the 2003 area quota for the south coast of Washington (Queets River, WA to Leadbetter Point, WA) fishery of 48,623 lb (22.1 mt) and the related management measures. The all-depth sport fishery in this area is scheduled for 5 days per week (Sunday through Thursday), and the nearshore fishery is scheduled for 7 days per week.
The pace of the all-depth halibut fishery is anticipated to slow off the south Washington coast, similar to 2002, beginning with the start of the recreational chinook and coho salmon fishery on June 22, which will be open through the earlier of September 14 or quota attainment. In 2002, effort shifted from the sport halibut fishery to the
In 2002, in order to provide more opportunity for the sport halibut fishery to attain their quota for the Washington south coast subarea, an adjustment to the fishing days per week was made inseason (67 FR 46420, July 15, 2002). The sport halibut fishing days were shifted in 2002 from 5 days per week (Sunday through Thursday) to 2 days per week (Friday and Saturday) so as not to coincide with the recreational salmon fishery which was open 5 days per week (Sunday through Thursday). Even with this shift in fishing days to increase opportunity for sport halibut fishing without directly competing with recreational salmon fishing, effort still remained low in the sport halibut fishery. The sport halibut quota was not attained for the south Washington coast subarea in 2002 and 4,221 lb (1.9 mt) remained out of a 42,739 lb (19.4 mt) subarea quota.
Sport halibut catch in the 2003 fishery, as of June 1, 2003, reports 16,593 lb (7.5 mt) of quota remaining out of a 48,623 lb (22.1 mt) quota for the Washington south coast fishery (both all-depth and nearshore). This fishery is scheduled to be open through September 30 or until quota attainment, whichever occurs earlier. Based on data from 2002 and prior years, Washington Department of Fish and Wildlife (WDFW), the agency that directly monitors the sport halibut fishery off Washington's coast, anticipated that the pace of the sport halibut fishery would slow in late June as effort shifted into recreational salmon fisheries. In order to increase opportunity for participation in sport halibut fisheries in the Washington south coast subarea, WDFW recommended to NMFS and the International Pacific Halibut Commission (IPHC) that the all-depth fishery be changed from a 5- days per week fishery (Sunday through Thursday - the same open days as the recreational chinook and coho salmon fisheries) to a 7-days per week fishery. This change would increase the days of the week that a vessel could fish for halibut in the all-depth area to mirror the 7-days per week sport fishery for halibut in the nearshore area. WDFW predicts that most effort in the sport halibut fishery will shift to Friday and Saturday, when there is no opportunity to fish for salmon. However, opening the fishery to 7-days per week allows that flexibility and increased opportunity to attain the 2003 sport halibut quota for this subarea. WDFW is concerned about potential overfished rockfish bycatch in the halibut sport fishery, particularly yelloweye rockfish, and is monitoring recreational fisheries to keep bycatch of yelloweye rockfish below approximately 7,716 lb (3.5 mt) statewide. At the end of May, bycatch of yelloweye rockfish in Washington's recreational fisheries was estimated to be at approximately 2,535 lb (1.15 mt).
Section 25 of the 2003 Pacific halibut regulations provides NMFS with the authority to make certain inseason management changes, provided that the action is necessary to allow allocation objectives to be met, and that the action will not result in exceeding the catch limit for the area. The Catch Sharing Plan's structuring objective for the Washington south coast area is to maximize the season length, while maintaining a quality fishing experience.
The Washington south coast all-depth subarea would be changed from a 5-days per week (Sunday through Thursday) fishery to a 7 days-per week fishery. The purpose of increasing the days per week that may be fished is to improve opportunity for sport halibut quota attainment in the south Washington coast subarea in 2003.
In consultation with the WDFW and the IPHC, NMFS has determined that increasing the fishing days per week in the Washington south coast all-depth subarea to sport halibut fishing 7 days per week meets the Catch Sharing Plan's objective of providing a quality fishing experience without allowing the fishery to exceed the Washington south coast halibut quota. Additionally, this action is not expected to result in bycatch of overfished groundfish species, particularly yelloweye rockfish, above the 3.5 mt set aside for Washington sport fisheries in 2003.
For the reasons stated above, NMFS announces the following change to the 2003 annual management measures (68 FR 10989, March 7, 2003, as amended at 68 FR 22323, April 28, 2003 and at 68 FR 23901, May 6, 2003) to read as follows:
1. On page 10999, in section 24. Sport Fishing for Halibut, paragraph (4)(b)(iii)(A) in the second column is revised to read as follows:
(A) The fishing season commences on May 1 and continues 5 days a week (Sunday through Thursday) in all waters, and commences on May 1 and continues 7 days a week in the area from Queets River south to 47° 00′00″ N. lat. and east of 124°40′00″ W. long., until June 26. Beginning June 27, the fishing season continues 7 days a week in all waters, including the area from Queets River south to 47°00′00″ N. lat. and east of 124°40′00″ W. long., until 48,623 lb (22.1 mt) are estimated to have been taken and the season is closed by the Commission, or until September 30, whichever occurs first.
This action is authorized by the regulations implementing the Catch Sharing Plan. The determination to take these actions is based on the most recent data available. The Assistant Administrator for Fisheries, NOAA (AA), has determined that good cause exists for this document to be published without affording a prior opportunity for public comment under 5 U.S.C. 553(b)(B) because doing so would be impracticable and contrary to the public interest. Providing prior notice and opportunity for public comment would be impracticable because it would delay this action and prevent fishers from accessing the 2 additional fishing days per week that do not overlap with the recreational salmon fishery in an effort to attain the Washington south coast halibut quota for 2003. Delaying this action may unnecessarily reduce the likelihood that the sport halibut fishery in the Washington south coast subarea would achieve the Catch Sharing Plan's objective of attaining the 2003 quota. In addition, some public input on this action was already received via teleconference on June 5, 2003, with NMFS, the IPHC, WDFW, and 4 Washington south coast recreational fishing constituents. Delaying this action is contrary to the public interest because it would force anglers to choose between fishing for halibut or fishing for salmon during the same 5 fishing days (Sunday through Thursday), which would reduce the opportunity to participate in both fisheries. For the above reasons, the AA has also determined that good cause exists to waive the delay of effectiveness of this action under 5 U.S.C. 553(d)(3).
Public comments will be received for a period of 15 days after the effectiveness of this action. This action is authorized by Section 25 of the annual management measures for Pacific halibut fisheries published on March 7, 2003 (68 FR 10989), and has been determined to be not significant for purposes of Executive Order 12866.
Authority: 16 U.S.C. 773-773k.
Federal Housing Finance Board.
Proposed rule.
The Federal Housing Finance Board (Finance Board) is proposing to amend its Acquired Member Assets (AMA) regulation, which authorizes the Federal Home Loan Banks (Banks) to acquire certain whole loans from their members. The changes proposed would place greater responsibility with each Bank to design and manage its AMA program, subject to ongoing supervisory review by the Finance Board. The proposed regulation would maintain the core provisions relating to safety and soundness, but would be less prescriptive and simpler than the current rule. The proposed rule also would codify the authority of a Bank to acquire as AMA assets instruments that are created by Bank members or housing associates in cooperation with a Bank and that represent an interest in loans that individually could qualify as AMA.
Comments on this proposed rule must be received in writing on or before September 2, 2003.
Send comments by electronic mail to
Scott Smith, Associate Director,
This proposed rule is an important first step in the Finance Board's effort to shift the focus of its regulations from a prescriptive approach to an approach that places greater responsibility on the Banks and relies more on supervisory review. The Finance Board believes that an increased focus on the process of supervisory review will enhance the safety and soundness of the Bank System.
On May 3, 2000, the Finance Board published a proposed rule to authorize the Banks to acquire certain whole loans.
Since implementation of the current rule, the Finance Board has recognized that an alternative approach, one that places greater responsibility on the Banks, would likely prove to be more effective and efficient in regulating the Banks' mortgage purchase programs. In addition, the Finance Board, now with several years experience in overseeing these programs, has identified a number of opportunities to clarify and simplify the current rule.
Specifically, the current rule includes prescriptive provisions concerning the risk-sharing structure that may not be necessary for safety and soundness purposes. Such provisions include the requirement that the rating methodology be verified in writing by a Nationally Recognized Statistical Rating Organization (NRSRO), even though the methodology remains subject to Finance Board approval, and that there must be certain restrictions on the credit enhancement structure, even though the member must bear the economic cost regardless of structure. Also, the current rule includes terms that have proven to be unclear and difficult to define, such as “expected losses” and “valid business purpose.” Further, the current rule does not specifically incorporate language to authorize the Banks to acquire as AMA certain instruments that are created by Bank members or housing associates in cooperation with a Bank and that represent an interest in AMA-eligible loans.
Although some opportunities to improve the current rule exist, the current rule does contain a number of appropriate and necessary safety and soundness provisions. These provisions would be maintained or strengthened in the proposed rule, and include the requirements that all AMA must be at least investment grade when acquired, and that only highly rated insurers may provide some portion of the credit enhancement.
The Finance Board invites anyone with an interest in this proposed rule to submit written comments to the Finance Board during the comment period.
The proposed rule would revise the current rule as described in the following sections.
The proposed rule would add four new defined terms, and would delete two of the existing definitions. Changes to individual definitions in the proposed rule are discussed in later sections of this
Section 955.2 of the current rule authorizes a Bank to invest in AMA, and establishes a three-part test for AMA-eligible investments.
The proposed rule also would add a definition of “AMA” to § 955.1, and would make conforming changes to the existing definition of “AMA” in 12 CFR 900.2. Under those definitions, the term “AMA” would mean any assets acquired in accordance with, and satisfying the applicable requirements of, proposed §§ 955.3, 955.4 and 955.5, which address the asset type, member nexus, and credit enhancement requirements, respectively.
The proposed rule would relocate and revise each element of the three-part test, which currently is set forth in §§ 955.2(a), 955.2(b) and 955.2(c).
Proposed § 955.3, which would specify the types of assets that are AMA-eligible, would eliminate one item that currently qualifies as AMA and add another item that the Finance Board has included as AMA by interpretation. The proposed rule would retain the provisions of the current rule relating to the acquisition of whole loans that are eligible to secure Bank advances, or that are secured by manufactured housing.
Section 955.4 of the proposed rule would retain a nexus requirement by providing that a Bank may acquire AMA-eligible loans only from its members and housing associates, from members and housing associates of another Bank, or from another Bank. The nexus requirement is intended to ensure that AMA assets have an appropriate connection to the Bank's member or housing associate. That connection advances the cooperative nature of the Bank System, and effectively precludes the extension of membership benefits to nonmembers. The proposed rule, however, would simplify this member or housing associate nexus requirement. The specific revisions are described below.
If the “valid business purpose” and “origination or issuance” provisions are eliminated, as proposed, the AMA rule would no longer use the term “affiliate.” Thus, the Finance Board is also proposing to delete the definition of “affiliate” from § 955.1.
The proposed rule would revise certain aspects of the credit risk-sharing requirements and would reorganize the credit risk-sharing requirements to achieve greater clarity. As noted below, the proposed rule would retain the requirements that the member must enhance the AMA to at least investment grade and that supplemental insurance providers must be rated at least the second highest investment grade. The Finance Board believes that these provisions are important for safety and soundness reasons.
While the proposed rule would maintain the requirement that a Bank must demonstrate the sufficiency of the methodology and economic value of the credit enhancement, to the satisfaction of the Finance Board, the proposed rule would eliminate the requirement that such demonstration may be provided only by written verification from an NRSRO. 12 CFR 955.3(a), (b)(4). Although a Bank could continue to use written NRSRO verification to demonstrate this sufficiency, the proposed rule is intended to allow the Banks the opportunity to determine other means by which to satisfy the requirement. Moreover, although the Finance Board is proposing to eliminate the specific requirement that a Bank obtain written verification from an NRSRO, the Finance Board would continue to use NRSRO standards and practices as the benchmark against which it judges the sufficiency of a Bank's methodology and the economic value of the credit enhancement. Thus, as under the current rule, to the extent an NRSRO were to decline to rate a structured finance transaction because the underlying asset pool included particular types or categories of assets, then the presence of such assets within an AMA pool would effectively preclude a Bank from calculating a putative credit rating for that pool and from complying with the proposed credit enhancement requirements with regard to that particular pool.
The proposed requirement that a Bank must have in place its process and methodology “prior to the acquisition of any asset or pool of assets and throughout the life of the asset or pool of assets on the Bank's books,” would replace the current requirement that the Bank must determine the required credit enhancement at the earlier of 270 days from the date of the Bank's acquisition of the first loan in a pool, or the date at which the amount of a pool's assets reaches $100 million. 12 CFR 955.3(a). As a result of this provision, a Bank would be responsible for ensuring that none of its actions, such as the approval of the sale of mortgage servicing rights by a member or housing associate that is responsible for the required credit enhancement, would affect the estimated credit rating of an asset.
Although the proposed rule would retain the current requirement that members or housing associates are responsible for providing the necessary credit enhancement to raise the credit quality to investment grade, it is less prescriptive than the current rule. This approach is not intended to alter the economics of the current risk-sharing requirement. Instead, it is intended that with fewer restrictions on the form of the credit enhancement, and on the type and degree of supplemental mortgage insurance (SMI), the Banks may develop alternative credit enhancement structures, such as through greater use of pool insurance.
The Finance Board has been asked previously to permit a member or housing associate to secure its credit enhancement obligation with collateral that is not eligible under the Bank Act to secure advances. The Finance Board has not included such a provision in the proposed rule, but requests comment on whether it would be appropriate to allow a member or housing associate to use such non-Bank Act-eligible collateral to secure its credit enhancement obligations.
The proposed rule also would eliminate the current restrictions on the type of insurance, particularly pool insurance, that may be used to cover any portion of the credit enhancement. Under the current rule, a member may use pool-level insurance only to cover that portion of the credit enhancement obligation that is attributable to geographic concentration and pool size.
The proposed rule would retain the existing AMA grandfather provision, with minor technical revisions, and would relocate it to proposed § 955.5(c). 12 CFR 955.2(c)(2). Under the proposed provision, any AMA-type assets acquired by a Bank in accordance with prior resolutions of the Finance Board would not be subject to the credit enhancement requirements in proposed § 955.5 of the AMA rule, provided that they remain within any total dollar cap imposed by the Finance Board.
The Finance Board is proposing to incorporate into the AMA rule previous guidance addressing the acquisition of instruments that represent an interest in AMA-eligible loans. The Finance Board had previously provided this guidance as part of the
(1) The certificates are rated by an NRSRO to meet the credit enhancement requirement of § 955.3;
(2) The certificates are issued following the execution of, and for the purpose of implementing an agreement between and
(3) The initiating Bank or Banks acquire substantially all of the certificates. It is the Finance Board's view that, in such a case, the use of a third party to securitize the whole loans would merely represent a vehicle to invest in certain types of AMA under more favorable terms and should therefore be permitted under the rule. However, if the certificates have been created as a security initially available to investors generally, they will not be considered to qualify as “whole loans” under § 955.2(a)(1).
Section 955.3(c) of the proposed rule, first, would require any instrument that represents an interest in whole loans to be backed only by loans that would be eligible for a Bank to acquire as AMA. In order to qualify as AMA, any such interests also must be created by a member or housing associate, in cooperation with a Bank. To help assure that the Bank's purchase of such instruments is not a mere capital markets transaction that would not advance the housing finance mission of the Bank System, the Bank cooperating in the creation of the instruments would be required initially to acquire substantially all of the assets issued under this arrangement.
Proposed § 955.3(c) also would make clear that interest only strips (IOs), principal only strips (POs), as well as other interests in the underlying loans that have risk characteristics similar to IOs or POs, would not qualify as AMA.
Second, § 955.4(b)(1) of the proposed rule would require that the whole loans underlying an AMA-qualified instrument may be acquired only from the same sources from which a Bank may acquire AMA-qualified whole loans. Thus, if a member were to use a trust or other special purpose entity to issue the AMA-qualified interests, the underlying loans must be purchased from: A member or housing associate of the Bank; a member of another Bank, pursuant to an arrangement with that Bank; or a Bank, if approved by the Finance Board. Section 955.6 of the proposed rule would prohibit the use of existing AMA assets to create an AMA-qualified instrument, without the prior approval of the Finance Board. To preserve the nexus between any such AMA-qualified interests in whole loans and the Bank System, the proposed rule also would allow a Bank to sell AMA-qualified interests in whole loans only to other Banks or to members of any Bank.
Finally, to qualify as AMA, an instrument representing an interest in whole loans would have to meet the same credit risk-sharing requirements as are applicable to other AMA-qualified assets. Thus, the instrument would need to be credit-enhanced to a credit quality equivalent to one of the four categories of investment grade, as determined by the Bank. The proposed rule would differ from the prior guidance provided in the Final AMA Rule, in that it would not require an AMA-qualified interest in whole loans to receive a public rating from an NRSRO. If an NRSRO were to provide a public investment grade rating of the level required by the Bank, that rating would generally satisfy the requirements of proposed § 955.5(a). Further, under proposed §§ 955.5(b)(1) and (b)(2), the member that arranged the creation of the AMA-qualified interest would need to provide the required credit enhancement, and bear all of the economic consequences of the credit enhancement responsibility, as is the case with respect to whole loan AMA assets. The required credit enhancement could be provided through subordinated or credit support tranches. A member generally could meet its obligations under the proposed rule if it were to acquire these support tranches, even if the member later sold these interests.
Moreover, given that credit support tranches would be structured to absorb losses up to the initial required amount of the credit enhancement, a Bank that buys the senior investment grade tranches would have no credit exposure to the member that initially acquires the credit support tranches or to any subsequent party that may purchase these support tranches. A credit support tranche, therefore, would not be within the meaning of the phrase “direct obligation of a member or a housing associate” as used in proposed § 955.5(b)(3), and a member or housing associate would not need to provide collateral in connection with this form of credit enhancement. Because the member would not be required to post collateral for the credit support tranches, there also would be no need to restrict the member's sale of those tranches to other Bank members.
The Finance Board is proposing to add new § 955.6 to the AMA regulation. This provision would prohibit a Bank from using or selling AMA that it has already purchased and is holding on its books to create alternative asset structures, including those assets described in § 955.3(c) of the proposed rule, without first obtaining Finance Board approval. Actions taken by a Bank with the intent to alter the putative or actual rating of its existing AMA or otherwise change the form of an asset or an asset's existing credit risk-sharing structure, would be covered by this provision. Among the factors the Finance Board would consider in reviewing a request for approval under this proposed section would be: How a Bank intends to unwind an existing credit enhancement structure or incorporate the credit enhancement into the structure of the new asset; whether, after the proposed repackaging is complete, a Bank would be holding an asset that it would not be authorized to purchase under Finance Board rules; and whether the new asset would advance or enhance the housing finance mission embedded in the AMA rule.
Under the proposed rule, the reporting requirements for AMA, which currently are contained in § 955.4, would be revised and relocated to § 955.7.
The proposed rule would clarify, in new § 955.7(a), that each Bank that has members or housing associates that have provided the initial credit enhancement for AMA, would be responsible for collecting and maintaining the loan-level and pool-level data required by § 955.7 for all residential mortgage loans that constitute or otherwise back such AMA, including assets described in § 955.3(c). The Bank would have this responsibility regardless of whether the AMA is participated in whole or in part to other Banks. Although the Bank would be responsible for collecting and maintaining this data and reporting the data to the Finance Board, the Bank could arrange by contract with another Bank to have this responsibility carried out by the other Bank.
The proposed rule is intended to reduce the overall burden of AMA data collection on the Banks while improving the informational content of the data that are collected. The burden would be lessened by reducing the number of data elements to be collected, by eliminating reporting redundancies, and by eliminating a requirement that the Banks aggregate data prior to reporting. Informational content would be improved by increasing the frequency of loan-level data reporting, codifying in the proposed rule the current practice of reporting certain data elements added since the implementation of the current rule, and adding a few more data elements needed to satisfy updated credit risk modeling requirements and to comply with revised Office of Management and Budget (OMB) reporting classifications.
The current rule also has resulted in reporting duplication. Basic information on loans acquired during the first two quarters of the year is reported twice—first in the second quarter loan-level report and again in the fourth quarter loan-level report. Under proposed § 955.7, loan-level data on the loan, borrower and property characteristics would be required to be reported only once—at the end of the calendar quarter in which the loan is acquired.
In addition, the proposed rule would relieve the Banks from reporting elements that are already collected elsewhere by the Finance Board. Specifically, elements the Banks would no longer report are those that describe the acquiring lender, or member selling the AMA to the Bank, and those containing census level demographic information related to the property.
The proposed rule would also reduce reporting redundancy by removing pool variables from the loan-level data report and requiring a separate pool-level data report. Under the current reporting system, the pool-level credit rating, as well as the participation percentage of each Bank in a loan's pool, is reported at the loan-level. Thus, the same information about the pool is reported numerous times, once for each loan in the pool. Under the proposed rule, a pool identifier would be reported at the loan-level, and pool-level information would be reported only once in the pool-level report. In addition to streamlining the pool-level data reporting, proposed §§ 955.7(c) and (d) would require the Banks to provide a quarterly update on loan pools so that the Finance Board can monitor changes in the credit quality of pools and estimated or actual credit enhancements, which are important safety and soundness considerations.
The proposed rule also would add the following loan-level data elements to allow for better tracking and modeling of prepayment and default rates of AMA: “Type of Credit Score;” redefinitions of “Borrower Credit Score” and “Co-Borrower Credit Score” to include, in addition to the Fair, Isaacs, Co. (FICO) score, the NextGen FICO credit score; “Adjustment Frequency;” “Negative Amortization;” “Current Unpaid Principal Balance;” “Current Coupon;” and “Loan Amount” (for multi-family AMA).
Each of the two proposed Appendices would be sub-divided into three parts for the three types of data that would be required to be collected and reported: Part I—Loan-level data elements to be reported for all single-family and multi-family AMA acquired during the calendar quarter; part II—Loan-level data elements to be reported for all single-family and multi-family AMA outstanding in the calendar quarter; and part III—Pool-level data elements to be reported for pools of single-family and multi-family AMA. The loan-level data elements contained in part I of both Appendices generally reflect characteristics of the loan or the borrower(s) and should not change over the life of the loan. As indicated above, to simplify the current reporting requirements, loan-level data specified in part I would only be required to be submitted during the calendar quarter in which the loan is acquired by a Bank.
The loan-level data elements contained in part II of the Appendices would include data that the Bank would be required to report for all single-family and multi-family AMA outstanding in a calendar quarter. These data elements are more meaningful when monitored on a continuing basis. This information would be used by the Finance Board to create and maintain a database to be used for safety and soundness monitoring, particularly of the Bank's risk management.
Part III of the Appendices would contain the data that the Bank would be required to report for pools or assets backed by pools. This information also would be used by the Finance Board to monitor the safety and soundness of the Bank's AMA program.
The Finance Board seeks comments on whether the data descriptions in proposed Appendices A and B are clear with regard to whole loans, or pools of such loans, that would back assets described in proposed § 955.3(c).
Neither the Bank, nor the member or housing associate from which the Bank acquires an asset, is expected to guarantee that all data items for each asset will be supplied. However, the Finance Board does expect the Banks to: Monitor how completely members or housing associates supply the requested data; identify and report to the Finance Board difficulties, problems or issues with respect to particular data fields or particular members or housing associates; and work with members and housing associates to minimize gaps in the data submissions. This guidance should not be interpreted to mean that the Banks may acquire an asset or a pool of assets if the Banks cannot collect data items necessary for purposes of establishing the equivalent credit rating of such asset or pool of assets under proposed § 955.5(a).
Under the proposed rule, the provisions governing administrative and investment transactions between Banks, which currently are contained in § 955.5, would be relocated to § 955.8.
The proposed rule would include a risk-based capital provision that specifies the type and amount of capital that a Bank must hold against AMA for which the estimated credit rating is less than the second highest category of
The proposed rule also would make clear that a Bank's risk-based capital requirement for its AMA is governed by § 955.9 only until it has implemented its capital structure plan and has complied with the capital requirements of 12 CFR part 932. After that time, a Bank would be governed solely by part 932 with respect to the risk-based capital requirement for AMA. This provision codifies a position previously stated by the Finance Board.
The proposed rule also would make a technical correction to apply the risk-based capital requirement to multi-family AMA, as well as single-family AMA.
The proposed rule would delete current § 955.6(b) regarding the recalculation of the credit enhancement, as provisions for dealing with a decline in the estimated credit rating of an AMA asset or pool of assets would be included under proposed § 955.5(a)(4), discussed above.
The Finance Board seeks comment on whether it should take measures to prevent a Bank from acquiring loans or assets backed by loans, through its AMA program, where the loans have certain features or were made under circumstances that may be considered “predatory” or “abusive.” If the Finance Board seeks to limit the Banks' authority to acquire such loans, or assets backed by such loans, what specific measures would need to be incorporated in the rule? Among the issues on which the Finance Board seeks comments are:
(a) Whether the Finance Board should address concerns regarding the acquisition of loans or assets backed by loans where the loans have certain features or were made under circumstances that may be considered “predatory” or “abusive,” by adopting a new regulatory provision that would require each Bank to develop policies to preclude acquiring such loans, or assets backed by such loans;
(b) Whether the Finance Board should address the acquisition of loans or assets backed by loans where the loans have certain features or were made under circumstances that may be considered “predatory” or “abusive,” through specific and detailed guidance to each Bank, as other Federal financial institution regulators have done with respect to the institutions they regulate; and
(c) How loans covered by such regulation or guidance should be identified.
The Finance Board's information collection related to AMA assets under the current rule has been reviewed and authorized by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, as implemented by OMB in regulations at 5 CFR part 1320. The OMB control number is 3069-0058. As described more fully in part F of the
The proposed rule, if adopted as a final rule, will apply only to the Banks, which do not come within the meaning of “small entities,” as defined in the Regulatory Flexibility Act (RFA).
Credit, Federal home loan banks, Reporting and recordkeeping requirements.
Capital, Credit, Federal home loan banks, Housing, Investments, Reporting and recordkeeping requirements.
Credit, Federal home loan banks, Housing, Reporting and recordkeeping requirements.
Accordingly, the Finance Board hereby proposes to amend parts 900, 932 and 955, chapter IX, title 12,
1. The authority citation for part 900 continues to read as follows:
12 U.S.C. 1422b(a).
2. Revise the definition of “acquired member assets” to read as follows:
3. The authority citation for part 932 continues to read as follows:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1440, 1443, 1446.
4. Amend the first sentence in § 932.4(e)(2)(ii)(E) by:
a. Removing the phrase “described in § 955.2 of this chapter”; and
b. Removing “§ 955.3” and adding, in its place, “§ 955.5”.
5. Amend the first sentence of § 932.9(a)(3) by removing the phrase “acquired member assets identified in § 955.2(a)(3) of this chapter or are otherwise”.
6. Revise part 955 to read as follows:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1430, 1430b, 1431.
As used in this part:
Each Bank is authorized to invest in assets that qualify as AMA, subject to the requirements of this part and part 980 of this chapter.
Assets that qualify as AMA shall be limited to the following:
(a) Whole loans that are eligible to secure advances under §§ 950.7(a)(1)(i), (a)(2)(ii), (a)(4), or (b)(1) of this chapter, excluding:
(1) Single-family mortgage loans where the loan amount exceeds the limits established pursuant to 12 U.S.C. 1717(b)(2); and
(2) Loans made to an entity, or secured by property, not located in a state;
(b) Whole loans secured by manufactured housing, regardless of whether such housing qualifies as residential real property under state law; or
(c) Other assets that are created by a member or housing associate in cooperation with a Bank, where the assets are backed by whole loans that meet the requirements of paragraphs (a) or (b) of this section, provided that the Bank must initially acquire substantially all of such assets and the assets do not constitute interest only strips (IO), principal only strips (PO), or other interests in the underlying loans that have risk characteristics that are similar to IO or PO instruments.
(a) In the case of assets described in §§ 955.3(a) and (b), a Bank shall acquire the assets, by means of either a purchase or a funding transaction, only from:
(1) A member or housing associate of the Bank;
(2) A member of another Bank, pursuant to an arrangement with that other Bank; or
(3) Another Bank.
(b) In the case of assets described in § 955.3(c):
(1) The whole loans underlying the assets shall be acquired only from:
(i) A member or housing associate of the Bank;
(ii) A member of another Bank, pursuant to an arrangement with that other Bank; or
(iii) A Bank, if approved by the Finance Board under § 955.6; and
(2) The assets may be sold by a Bank only to other Banks or to members of any Bank.
(a)
(2)
(3)
(i) Determines the applicable credit enhancement required under paragraphs (a)(1) and (a)(2) of this section; and
(ii) Demonstrates that the economic value of the credit enhancement provided by the member or housing associate is sufficient to meet the applicable credit enhancement required under paragraphs (a)(1) and (a)(2) of this section.
(4)
(i) Require the member or housing associate to provide additional credit enhancement in an amount sufficient to restore the estimated credit rating for such asset or pool of assets; or
(ii) Recalculate, and comply with, the risk-based capital requirement for the asset or pool of assets in accordance with § 932.4 of this chapter or § 955.9, as applicable, based on the reduced estimated credit rating.
(b)
(i) A member or housing associate of the Bank; or
(ii) With the approval of both Banks, a member or housing associate of another Bank.
(2)
(3)
(4)
(c)
A Bank shall not alter the credit risk-sharing structure of any AMA that it has acquired, nor shall it take any actions with the intent or effect of altering the actual or putative credit rating of any such AMA, without the prior approval of the Finance Board. A Bank also shall not sell or otherwise use any AMA in order to create a new type of asset, including assets described in § 955.3(c), without prior Finance Board approval.
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The Board of Directors of the Federal Housing Finance Board.
Bureau of Indian Affairs, Interior.
Announcement of negotiated rulemaking committee meetings.
The Secretary of the Interior has established an advisory Committee to develop recommendations for proposed rules for Indian education under six sections of The No Child Left Behind Act of 2001. As required by the Federal Advisory Committee Act, we are announcing dates and locations of the next three meetings of the No Child Left Behind Negotiated Rulemaking Committee.
The Committee's next three meeting dates and locations are :
Barbara James or Shawna Smith, No Child Left Behind Negotiated Rulemaking Project Management Office, PO Box 1430, Albuquerque, NM 87103-1430; telephone (505) 248-7241; fax (505) 248-7242; e-mail
The No Child Left Behind Negotiated Rulemaking Committee is an advisory committee formed under the No Child Left Behind Act of 2001, the Negotiated Rulemaking Act, and the Federal Advisory Committee Act. The purpose of the Committee is to negotiate and reach consensus on recommendations for proposed rules for Indian education under six sections of The No Child Left Behind Act of 2001. For more information on negotiated rulemaking under The No Child Left Behind Act, see the
At the next three meetings the Committee will divide into the four work groups established by the Committee at its last meeting. The work groups are: Student Rights and Geographic Boundaries; Tribally Controlled Schools Act/Grants; Adequate Yearly Progress; and Funding and Distribution of Funds. The Committee will also meet in full session each day for work group reports and logistics. All meetings are open to the public. There is no requirement for advance registration for members of the public who wish to attend and observe the Committee meetings or the work group meetings or to make public comments. The agenda for the July 14-18, 2003, meeting is as follows:
It is necessary to hold this meeting at this time to meet the mandated date for publishing the proposed rule. Due to scheduling conflicts, we could not finalize the meeting arrangements in time to publish this notice more than 15 days before the start of the meeting.
Departmental Offices, Treasury.
Notice of inquiry.
The Department of the Treasury seeks additional comments from all interested persons on two discrete issues relating to final regulations issued recently pursuant to section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001: Whether and under what circumstances financial institutions should be required to retain photocopies of identification documents relied on to verify customer identity; and, whether there are situations when the regulations should preclude reliance on certain forms of foreign government-issued identification to verify customer identity.
Written comments may be submitted on or before July 31, 2003.
Commenters are strongly encouraged to submit comments by accessing the following Department of the Treasury Internet site:
Comments may also be sent by electronic mail as follows: Electronic mail comments relating to the recordkeeping requirement (as described in section II(A) below), should be sent to
Comments also may be submitted by paper mail (preferably an original plus three copies). For comments relating to the recordkeeping requirement (as described in section II(A) below), paper mail comments should be sent to: 326 Recordkeeping Comments, U.S. Department of the Treasury, Office of the General Counsel, 1500 Pennsylvania Avenue, NW., Washington, DC 20220-0002.
For comments relating to documentary verification of identity (as described in section II(B) below), paper mail comments should be sent to: 326 Identification Comments, U.S. Department of the Treasury, Office of the General Counsel, 1500 Pennsylvania Avenue, NW., Washington, DC 20220-0002.
Please send comments by one method only. Commenters should not include materials or information in comments that they do not wish to be made available to the public. Comments may be inspected at the Department of the Treasury between 10 a.m. and 4 p.m. beginning approximately July 11, 2003. Persons wishing to inspect the comments submitted must request an appointment by telephoning (202) 622-0990 (not a toll-free number).
Office of the General Counsel at (202) 622-1927.
On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
Section 326 of the Act added a new subsection (l) to 31 U.S.C. 5318 of the BSA that requires the Secretary of the Treasury (Secretary) to prescribe regulations “setting forth the minimum standards for financial institutions and their customers regarding the identity of the customer that shall apply in connection with the opening of an account at a financial institution.” For any financial institution engaged in financial activities described in section 4(k) of the Bank Holding Company Act of 1956 (section 4(k) institutions), the Secretary is required to prescribe the regulations issued under section 326 jointly with the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, the National Credit Union Administration, the Securities and Exchange Commission, and the Commodity Futures Trading Commission (collectively, the federal functional regulators).
Section 326 of the Act provides that the regulations must require, at a minimum, financial institutions to implement reasonable procedures for (1) verifying the identity of any person seeking to open an account, to the extent reasonable and practicable; (2) maintaining records of the information used to verify the person's identity, including name, address, and other identifying information; and (3) determining whether the person appears on any lists of known or suspected terrorists or terrorist organizations provided to the financial institution by any government agency. In prescribing these regulations, section 326 of the Act directs the Secretary to take into consideration the various types of accounts maintained by various types of financial institutions, the various methods of opening accounts, and the various types of identifying information available.
On May 9, 2003, the Department of the Treasury (Treasury), through the Financial Crimes Enforcement Network (FinCEN), together with the federal functional regulators, published final rules implementing section 326.
The final rules require financial institutions to develop a customer identification program (“CIP”) that includes risk-based procedures for verifying the identity of each customer to the extent reasonable and practicable. Among other things, the CIP must enable the financial institution to form a reasonable belief that it knows the true identity of the customer. Financial institutions must develop their CIP to minimize the relevant risks, including those presented by the types of accounts maintained by the institution, the various methods of opening accounts, the types of identifying information available, as well as the financial institution's size, location, and type of business or customer base.
The rules implementing section 326 became effective on June 9, 2003, although financial institutions have until October 1, 2003 to come into compliance.
The CIP implemented pursuant to the section 326 final rules will form an integral part of a financial institution's efforts to detect and prevent money laundering and the financing of terrorism. Moreover, the information collected and maintained by financial institutions is designed to provide an effective audit trail should an investigation be conducted. Since publishing the final regulations, concerns have been raised about two provisions relating to recordkeeping and the acceptance of certain forms of identification. As a result of these concerns, and as part of Treasury's continuing efforts to ensure that BSA regulations strike the appropriate balance between the burdens imposed on the financial system and the prevention of money laundering and the financing of terrorism, Treasury seeks additional input on the two provisions.
The final rules implementing section 326 permit financial institutions to verify customer identity through both documentary and non-documentary means. In proposed rules issued in July of 2002, Treasury and the federal functional regulators included a new requirement that, when a financial institution relies on a document—such as an identification card—to verify identity, the financial institution must make and maintain a photocopy of that document.
Treasury seeks additional comment on whether and under what circumstances financial institutions should be required to make and maintain photocopies of identification
1. Should the regulations require financial institutions to make and maintain a photocopy of identification documents upon which the financial institution relies to verify identity in all cases?
2. Should the regulations identify specific instances in which photocopies of documents relied upon must be made and maintained?
3. Should the regulations provide guidance to financial institutions concerning risk factors indicating when photocopying identification documents relied upon may be appropriate?
The views of law enforcement, the industry, and others are sought, even if such views have been expressed previously in connection with the proposed rulemakings. This inquiry focuses on the recordkeeping requirements when a financial institution relies on documents to verify identity.
Under the risk-based approach of both the proposed and final rules, to the extent documents are used, financial institutions are given some discretion to determine which documentary forms of identification may be used to verify the identity of foreign individuals who seek to open an account. First, the final rules require financial institutions to obtain an identification number from all customers. For a non-U.S. person, an institution must obtain one or more of the following: a taxpayer identification number (social security number, individual taxpayer identification number, or employer identification number); passport number and country of issuance; alien identification card number; or number and country of issuance of any other government-issued document evidencing nationality or residence and bearing a photograph or similar safeguard. Noting the absence of a uniform, standard identification number that non-U.S. persons could provide to financial institutions,
Second, financial institutions must set forth the types of documentary identification that they will accept to verify identity. Financial institutions are encouraged to use multiple forms of identification to minimize risks. The final rules provide an illustrative list of identification documents that may be used. For an individual, these may include an unexpired government-issued identification evidencing nationality or residence and bearing a photograph or similar safeguard, such as a driver's license or passport.
Treasury and the federal functional regulators emphasized that the final rules neither endorsed nor prohibited a financial institution's acceptance of particular types of identification documents issued by foreign governments. Instead, a financial institution must decide for itself, based upon consideration of the appropriate risk factors, whether the information presented by a customer is reliable.
Ensuring the appropriate identification of all persons opening accounts at financial institutions, including non-U.S. citizens, is a significant goal of the final regulations. Therefore, Treasury seeks additional comment on whether there are situations in which the regulations should preclude reliance on certain forms of foreign government-issued identification to verify customer identity. The regulations presently rely on financial institutions to determine which forms of foreign-issued identification to accept and under what circumstances, in light of the risks associated with each form of identification.
1. Should the regulations preclude financial institutions' reliance on certain forms of identification issued by certain foreign governments?
2. Should the regulations require financial institutions to obtain a passport number from all customers who are non-U.S. citizens?
a. What are the anticipated effects on non-U.S. citizens in the United States who are not required to have a passport?
b. What are the anticipated effects on non-U.S. citizens who open accounts from abroad, and thus are not required to have a passport?
3. Is there sufficient empirical information to enable Treasury to assess the utility of the various forms of foreign-issued identification for purposes of accurately identifying the holder?
4. What would the impact be on the use of the conventional financial system if financial institutions were prohibited from accepting certain forms of government-issued identification?
The views of law enforcement, the industry, and others are sought, even if such views have been expressed previously in connection with the proposed rulemakings.
The purpose of this Notice of Inquiry is to solicit further comment on the two issues outlined above and to enhance the administrative record. Only after considering all comments received in response to this notice of inquiry will Treasury determine whether to discuss with the federal functional regulators if it would be appropriate to jointly propose amendments to the final rules published on May 9, 2003, through a notice of proposed rulemaking. Financial institutions covered by the final rules are reminded of their obligation to be in compliance with the final rules by October 1, 2003.
This document has been reviewed by the Office of Management and Budget as a significant regulatory action under Executive Order 12866.
Environmental Protection Agency (EPA).
Proposed rule; extension of comment period.
The United States Environmental Protection Agency is extending the comment period for a proposed action published Thursday, June 19, 2003 (68 FR 36756). On June 19, 2003, the EPA: proposed to withdraw our final approval of BPA's 2007 attainment demonstration State Implementation Plan (SIP), the motor vehicle emission budget (MVEB), the mid-course review commitment (MCR), our finding that BPA implemented all RACM; and withdrew the extension of the attainment date to 2007 and our
The South East Texas Regional Planning Commission (SETRPC) submitted a letter requesting a 30-day extension to the comment period. SETRPC stated they need that time to solicit and develop meaningful comments due to the magnitude and significant ramifications of the proposed decision. At the request of the SETRPC, the EPA is extending the comment period for 30 days.
The comment period is extended until August 20, 2003.
Comments on this action can be mailed to Mr. Thomas H. Diggs, Chief, Air Planning Section (6PD-L), U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733 or e-mailed to
Steven Pratt, Air Planning Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone Number (214) 665-2140, e-mail Address:
Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Mary Jean Pajak, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2831.
The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR Part 67 is proposed to be amended as follows:
1. The authority citation for Part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Mary Jean Pajak, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2831.
The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
Administrative practice and procedure, Flood insurance, Reporting and record keeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the following table.
Mary Jean Pajak, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2831.
The Federal Emergency Management Agency proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR Part 67 is proposed to be amended as follows:
1. The authority citation for Part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to: increase the incidental catch allowance for weakfish caught in the Exclusive Economic Zone (EEZ) from 150 lb (67 kg) to no more than 300 lb (135 kg) per day or trip, whichever is longer in duration; remove Massachusetts and Connecticut from the list of states where commercially caught weakfish from the EEZ can be landed; and add to our regulations the Director, Office of Sustainable Fisheries, as an official who can grant Exempted Fishing Permits. The intent of this proposed rule is to modify regulations for the Atlantic coast stock of weakfish to promote the effectiveness of the Commission's Interstate Fishery Management Plan (ISFMP) for weakfish.
Written comments must be received on or before July 31, 2003.
Comments on the proposed rule should be sent to, and copies of a Draft Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), are available from, Anne Lange, Chief, State-Federal Fisheries Division (SF8), Office of Sustainable Fisheries, National Marine Fisheries Service, 1315 East-West Highway, Suite 13317, Silver Spring, MD 20910.
Tom Meyer, 301-713-2334.
NMFS is proposing to modify weakfish conservation measures in the EEZ under the authority of section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act), 16 U.S.C. 5101
On November 21, 2002, the Commission approved and implemented Amendment 4 to the ISFMP for Weakfish (Amendment 4). Under Amendment 4, vessels fishing for weakfish must use mesh sizes of at least 3
Amendment 4 incorporates results of the most recent weakfish stock assessments, developed by the Atlantic Coastal States, the Commission, and NMFS (Section 1.2.2 of Amendment 4). The 30th Northeast Regional Stock Assessment Workshop, in 2000, reviewed the weakfish stock assessment and concluded that weakfish were at a high level of abundance and subject to low fishing mortality rates. The assessment was subsequently updated, in 2002, with data through 2000. Spawning stock biomass has been building since 1993, and is currently well above the threshold of 31.8 million lb (14,400 MT). Estimates of fishing mortality, which reached a high in 1994 of 2.52, have been below 0.50, since 1995. The 2000 estimate is below the fishing mortality target of 0.31 and far below the fishing mortality threshold of 0.50.
Management measures implemented under Amendment 3 resulted in an increase in the size and age structure of the weakfish population. The estimate of the proportion of age 6+ fish had shrunk to only 0.3 percent of the total number of weakfish in 1990. This proportion has been increasing in recent years, reaching 6.8 percent of the total number in 2001. Measures implemented under Amendment 4 are designed to continue the expansion of the weakfish age and size structure to that necessary for full restoration of the stock, and to return weakfish to their previous geographic range.
On March 13, 2003, the Secretary received the following two recommendations from the Commission to implement regulations under the Atlantic Coastal Act: (1) Require that fishermen who harvest weakfish recreationally in the EEZ comply with the laws of the state where they are landed; and (2) allow fishermen in non-directed fisheries using smaller than certain specified mesh sizes to possess no more than 300 lb (135 kg) of weakfish during any one day or trip, whichever is longer in duration (an increase of 150 lb (67 kg) per day or trip). These two recommendations were part of five measures approved under
Recommendation 1 would require that fishermen who harvest weakfish recreationally in the EEZ comply with the laws of the state where they are landed. NMFS believes that the current provisions at 50 CFR 697.3(c) (“The regulations in this part do not preempt more restrictive state laws, or state enforcement of more restrictive state laws, with respect to weakfish fishing and American lobster fishing”) is compatible with the intent of this recommendation. If a state has a regulation that is more restrictive than the Federal regulation in the EEZ, the Federal regulation would apply in the EEZ but would likely not prohibit the state from enforcing its more restrictive state law upon landing in that state. Therefore, the Commission's recommendation is already in effect and a change to the current regulation is not required.
Recommendation 2 would allow non-directed fisheries using a mesh size less than 3
Recommendation 2 is essentially a bycatch provision. Bycatch is defined in the Magnuson-Stevens Act as “fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards.” In this case, since vessels fishing for weakfish are required to adhere to the minimum mesh sizes described above, vessels using the smaller mesh sizes cannot direct effort on this species. However, since vessels fishing with smaller mesh sizes are likely to encounter weakfish, any weakfish in excess of 300 lb (135 kg), taken by such vessels, would be considered bycatch under this recommendation. In addition, under Amendment 4, vessels fishing with smaller mesh sizes can retain up to the 300 lb (135 kg) weakfish bycatch allowance in state waters, provided there is at least an equal poundage of other species on board the vessel. The provision for equal or greater poundage of other species is more restrictive than would be implemented in Federal waters. Any state that chooses to implement a 300-lb (135-kg) allowance must have a reporting system in place that will allow adequate quantification of any such catch. State management plans must also account for any harvest of weakfish from non-directed fisheries. The required reporting systems will provide information on weakfish bycatch that will be needed by the Commission and NMFS in developing future regulations. This recommendation requires a change to current Federal regulations.
Another of the five measures approved under Section 4.9 of Amendment 4 was that weakfish commercially harvested in the EEZ be landed in accordance with the landing laws of the state in which they are landed, with the exception that weakfish caught commercially in the EEZ may not be landed in a
The Commission found, and the Secretary agrees, that the States of Massachusetts and Connecticut are now
Pursuant to section 804(a) of the Atlantic Coastal Act, the Secretary has a statutory obligation to support the Commission's Interstate Fishery Management Program. The Commission recently adopted Amendment 4, which is designed to continue the stock recovery seen during the implementation of Amendment 3, to benefit the ecosystem as well as commercial and recreational fisheries, and to continue to increase the age and size structure of the weakfish population, as well as its geographic range. In furtherance of this plan, the Commission requested Secretarial support in the form of a modification to the current Federal weakfish regulations. The recommended regulatory change would reduce dead discards (bycatch) by increasing the amount of incidental catch that can be landed, but by such a minimal amount that it would not encourage directed fishing. To support the Commission's weakfish management efforts under Amendment 4, NMFS proposes the following regulations that would modify management restrictions in the Federal weakfish fishery in a manner that is compatible with the recommendations made by the Commission. The proposed rule would allow vessels using a mesh size less than 3
Two changes would be included in this rulemaking for consistency and ease of reading: (1) Under 50 CFR 697.22—Exempted fishing, the Regional Administrator is the only official who can exempt a person or vessel from the requirements of this part for the conduct of exempted fishing beneficial to the management of weakfish, pursuant to the provisions of 50 CFR 600.745 of this chapter. But, under 50 CFR 600.745, the Director, Office of Sustainable Fisheries has also been delegated this task. For consistency, the Director would be added to 50 CFR 697.22 as an official, along with the Regional Administrator, who can exempt a person or vessel from the requirements of this part; and (2) Atlantic Coastal Act would be added to the definition section at 50 CFR 697.2.
This proposed rule is published under the authority of the Atlantic Coastal Act. Paragraphs (A) and (B) of section 804(b)(1) authorizes the Secretary to implement regulations in the EEZ in the absence of a Magnuson-Stevens Act FMP. Such regulations must be
NMFS prepared an initial regulatory flexibility analysis (IRFA) that describes the impact that this proposed rule, if adopted, would have on small entities. A summary of the IRFA is as follows:
This proposed rule is published under the authority of section 803 of the Atlantic Coastal Act. The purpose of the proposed rule is to improve cooperative management of the Atlantic coast weakfish fishery by supporting the Commission's Amendment 4, as required under the Atlantic Coastal Act. The proposed Federal regulatory change would increase the permitted non-directed incidental catch of the species from 150 lb (67 kg) to no more than 300 lb (135 kg) per day or trip. Analysis of the best available data in the EA/RIR/IRFA suggests that the proposed increase would not alter current fishing practices or effort, or increase the number of weakfish caught. The 150-lb (67-kg) increase would simply convert 150 lb (67 kg) of weakfish, which would be caught and discarded at sea as dead bycatch, into 150 lb (67 kg) of weakfish caught as incidental catch and landed. The need for the proposed action is explained in the preamble to this proposed rule and is not repeated here.
Only two alternatives were considered for this proposed action. They were: Alternative 1: No Action; and Alternative 2 (Preferred Alternative): Allow vessels in non-directed fisheries, using mesh sizes less than 3
The preferred alternative would allow vessels in non-directed fisheries, using a mesh size less than 3
NMFS does not have an estimate of the number of small entities to which the proposed action would apply because vessels most likely to be impacted are not required to hold a permit to fish for weakfish in the EEZ. However, the action would only apply to those fishermen who capture weakfish incidentally while fishing for other species using a smaller mesh size than is allowed in the directed weakfish fishery. In addition, under Alternative 1, status quo, no additional small entities would be impacted; while implementation of Alternative 2 would apply to fishermen who use nets with smaller mesh sizes and catch over 150 lb (67 kg) of weakfish on a given day or trip. During 1998-2002, vessel trip reports indicated that only 1,116 small mesh otter trawl trips and 4 small mesh gillnet trips landed weakfish caught while fishing in the EEZ. The average price received by fisherman reporting weakfish catch in the EEZ in 2001 was $0.614 per lb. If an affected vessel were to land 150 lb (67 kg) of weakfish, as currently permitted (Alternative 1), $92 in revenue could be realized, per trip. If Alternative 2 were implemented, an additional $92 in revenue, for a weakfish total of $184 per trip (double the current amount) would be possible. For a more accurate picture of the expected economic impacts for the two alternatives, actual catches from individual vessel trip records, from 1998-2002, were multiplied by average price-per-pound of weakfish from the EEZ to determine estimated revenues per trip. Since vessels may not catch the full 150 lb (67 kg) or 300 lb (135 kg) allowed in Alternative 1 and 2, revenues for each Alternative were projected as the average for those trips that reported from 1 to 150 lb (67 kg) (Alternative 1) and from 151 to 300 lb (135 kg) (Alternative 2). Catches from trips that reported over 300 lb (135 kg) were capped at the 300 lb (135 kg) proposed limit (Alternative 2) for these calculations. Calculated revenues for sale of allowed weakfish landings under Alternative 1 averaged $22; potential revenues for Alternative 2 were estimated at $160 per trip. Based on 1998-2002 vessel trip data, total annual revenues for all non-directed weakfish trips, coastwide are projected to be about $6,200 under Alternative 1, and about $7,800, if Alternative 2 were to be implemented.
There will be no reporting and recordkeeping requirements resulting from this proposed action.
There are no Federal rules which may duplicate, overlap, or conflict with the proposed action.
NMFS is inviting the public to provide comment on the number of small entities that might be affected by this proposed action. NMFS will consider comments received during the public comment period for this proposed action that relate to the economic impacts of the preferred alternative before publishing the final action.
A copy of the IRFA is available from NMFS (see
NMFS has made a preliminary decision that this proposed rule is not significant for purposes of E.O. 12866. This proposed rule has been submitted to the Office of Management and Budget for review pursuant to E.O. 12866.
Fisheries, Fishing
For the reasons set out in the preamble, 50 CFR chapter VI, part 697, is proposed to be amended as follows:
1. The authority citation for part 697 is revised to read as follows:
16 U.S.C. 5101
2. In § 697.2, the definition for “Atlantic Coastal Act” is added in alphabetical order to read as follows:
3. Section 697.7, paragraph (a)(4) and (a)(7) are revised to read as follows:
(a) * * *
(4) Possess more than 300 lb (135 kg) of weakfish during any one day or trip, whichever is longer, in the EEZ when using a mesh size less than 3
(7) Land weakfish for commercial purposes caught in the EEZ in any state other than Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, or North Carolina.
4. Section 697.22 is revised to read as follows:
The Regional Administrator or Director may exempt any person or vessel from the requirements of this part for the conduct of exempted fishing beneficial to the management of the American lobster, weakfish, Atlantic striped bass, Atlantic sturgeon, or horseshoe crab resource or fishery, pursuant to the provisions of § 600.745 of this chapter.
(a) The Regional Administrator or Director may not grant such exemption unless it is determined that the purpose, design, and administration of the exemption is consistent with the objectives of any applicable stock rebuilding program, the provisions of the Atlantic Coastal Act, the Magnuson-Stevens Act, and other applicable law, and that granting the exemption will not:
(1) Have a detrimental effect on the American lobster, Atlantic striped bass, weakfish, Atlantic sturgeon, or horseshoe crab resource or fishery; or
(2) Create significant enforcement problems.
(b) Each vessel participating in any exempted fishing activity is subject to all provisions of this part, except those explicitly relating to the purpose and nature of the exemption. The exemption will be specified in a letter issued by the Regional Administrator or Director to each vessel participating in the exempted activity. This letter must be carried aboard the vessel seeking the benefit of such exemption. Exempted fishing activity shall be authorized pursuant to and consistent with § 600.745 of this chapter.
Cooperative State Research, Education, and Extension Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Cooperative State Research, Education, and Extension Service's (CSREES) intention to request approval to establish an information collection for the CSREES Current Research Information System (CRIS).
Submit comments on or before September 4, 2003.
Address all comments to Jason Hitchcock, E-Government Program Leader, Information Systems and Technology Management; CSREES/USDA; Mail Stop 2216; 1400 Independence Avenue, SW.; Washington, DC 20250-2216. Comments may be sent electronically to:
Jason Hitchcock at (202) 720-4343 or via the above e-mail address.
CSREES also administers several formula-funded research programs. The programs are authorized pursuant to the authorities contained in the Hatch Act of 1887 (7 U.S.C. 361a-i); McIntire-Stennis Cooperative Forestry Research Act of October 10, 1962 (16 U.S.C. 582a
The Current Research Information System (CRIS) is the U.S. Department of Agriculture's documentation and reporting system for ongoing agricultural, food science, human nutrition, and forestry research. CRIS Form AD-416, Research Resume; CRIS Form AD-417, Classification of Research; CRIS Form AD-419, Research Funds and Staff Support; and CRIS Form AD-421, Progress Report constitute an information collection for publicly-supported research projects as set forth in 7 CFR Parts 3400-3419. This information collection is necessary in order to provide descriptive information regarding individual research activities and integrated activities, to document expenditures and staff support for the activities, and to monitor the progress and impact of such activities.
The historical mission of CRIS, broadly stated, is to document the research activities of the USDA and the State agricultural research system partners, to satisfy a variety of reporting requirements; and to provide access to research information. This mission supports one of the CSREES' primary functions, stated in the agency strategic plan, of providing program leadership to identify, develop, and manage programs to support university-based and other institutional research.
The boundaries and scope of the CRIS mission are being expanded each year toward a more comprehensive purpose. As such, the information collected for CRIS is utilized in an essentially unlimited number of ways for a wide array of purposes. Generally, CRIS provides ready access to information through public web accessible data as well as individually requested, customized reports and services for agency officials, program leaders, administrators and managers. The information provided helps users to keep abreast of the latest developments in agricultural, food science, human nutrition and forestry research; track resource utilization in specific target areas of research; plan for future research activities; plan for resource allocation to research programs; avoid costly duplication of research effort; aid in coordination of research efforts addressing similar problems in different locations; and aid researchers in establishing valuable contacts within the research community.
Descriptive information pertaining to documented projects is available to the general public as well as the agricultural research community contributing to CRIS. Limited financial information is available on individual grant projects and cooperative agreements as well as summary financial information through the CRIS web site.
Cooperating institutions, including the state agricultural experiment stations, state forestry schools, 1862 land-grant institutions and 1890 land-grant institutions have access to all the data pertaining to their institutions. Many institutions take advantage of this access utilizing CRIS system facilities to manage the research programs at their institutions.
In addition, CSREES staff members can request specialized reports directly from the CRIS staff. These requests can include financial disclosure pertaining to a particular subject area or targeted program. The nature of this type of request characterizes one of the strengths of the CRIS information collection. The system collects obligations and expenditures on individual projects; however, information can be retrieved and aggregated based on subject areas or targeted programs, and corresponding financial information can be tabulated accordingly. The inclusion of subject-
Determination of hour burden estimates for the CRIS data collection was accomplished by requesting estimates from nine individuals who have significant experience in the generation of information to satisfy the collection requirements of the AD-416, AD-417, AD-419 and AD-421 forms. The basic unit of measure in CRIS is a project. As such for purposes of this estimate, a respondent was treated as all responses related to a single project. Typically the information to provide data on the four forms is the result of work processes performed by a number of individuals, both professional and administrative. Accordingly the estimate was developed by tabulating burden hours in two categories, the first, scientific/professional, and the second, administrative. The estimates provided varied in magnitude. The variation is due to significant differences in the internal procedures and processes utilized at the individual locations as well as differences between individual interpretation of the inclusion of efforts contributed to the development of the information. Responses were received from eight of the nine individuals. The data was summarized to develop common burden hour estimates related to each individual form. These estimates were then projected onto the total volume of the forms processed by CRIS in an annual cycle.
CSREES estimates the number of responses for the CRIS Form AD-416 will be 3,258 with an estimated response time of 3.9 hours per form, representing a total annual burden of 12,706 hours for this form. CSREES estimates the number of responses for the CRIS Form AD-417 will be 3,258 with an estimated response time of .7 hours per form, representing a total annual burden of 2,281 hours for this form. CSREES estimates that the number of responses for the CRIS Form AD-419 will be 11,767 with an estimated response time of 1.4 hours per form, representing a total annual burden of 16,474 hours for this form. CSREES estimates the number of responses for the CRIS Form AD-421 will be 12,158 with an estimated response time of 2.7 hours per form, representing a total annual burden of 32,827 hours for this form. Thus, for this CRIS information collection, CSREES estimates a total of 30,441 annual responses, representing an estimated 64,288 annual burden hours.
Copies of this information collection can be obtained from Jason Hitchcock, E-Government Program Leader, Information Systems and Technology Management; CSREES/USDA; Mail Stop 2216; 1400 Independence Avenue, SW.; Washington, DC 20250-2216; or sent electronically to:
Cooperative State Research, Education, and Extension Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), this notice announces the Cooperative State Research, Education, and Extension Service's (CSREES) intention to revise and request an extension for a currently approved information collection (OMB No. 0524-0026) for Form CSREES-665, “Assurance of Compliance with the Department of Agriculture Regulations Assuring Civil Rights Compliance,” and Form CSREES-666, “Organizational Information.”
Submit comments on or before September 4, 2003.
Address all comments to Erin Daly, Policy Specialist, Office of Extramural Programs; CSREES/USDA; Mail Stop 2299; 1400 Independence Avenue, SW.; Washington, DC 20250-2299. Comments may be sent electronically to:
Erin Daly at (202) 401-3319 or via the above e-mail address.
The following information will continue to be collected:
Form CSREES-665—Assurance of Compliance with the Department of Agriculture Regulations Assuring Civil rights Compliance: By signing this form, the organization certifies that it complies with the Civil Rights Act of 1964, as amended. The applicant agrees that it will offer its programs to all eligible persons without regard to race, color , national origin, gender, disability, age, political beliefs, religion, marital status, or familial status and that people will not be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which the Applicant receives the Federal financial assistance from the Department of Agriculture. This information is submitted to CSREES on a one-time basis.
Form CSREES-666—Organizational Information: Enables CSREES to determine that applicants recommended for awards will be responsible recipients of Federal funds. The information pertains to organizational management and financial matters of the potential grantee. This form and the documents which the applicant attaches to it provide CSREES with information such as the legal name of grantee, certification that the organization has the legal authority to accept Federal funding, identification and signatures of the key officials of the organization, the organization's practices in regard to compensation rates and benefits of employees, insurance for equipment, subcontracting with other organizations, etc., as well as the financial condition of the organization. All of this information is considered by CSREES prior to award to determine that grantees are both managerially and fiscally responsible. This information is submitted to CSREES on a one-time basis. If sufficient changes occur within the organization, the grantee submits revised information.
With regards to compliance with the Government Paperwork Elimination Act (44 U.S.C. 3504 note), CSREES is proposing to postpone making an electronic option available for this information collection until the Federal government-wide electronic process is developed for collecting organizational information and statutory certifications from new grantees. Under the Federal Financial Assistance Management Improvement Act of 1999 (Pub. L. 106-107), Federal agencies and OMB have been working together to streamline and simplify the award and administration of Federal grants. As a result of these activities, Federal agencies and OMB are proposing various regulations, policies, and business processes that will decrease the overall information collection burden to grant recipients by having a central location where this information is collected for use by all Federal grantmaking agencies.
Copies of this information collection can be obtained from Erin Daly, Policy Specialist, Office of Extramural Programs; CSREES/USDA; Mail Stop 2299; 1400 Independence Avenue, SW,; Washington, DC 20250-2299; or sent electronically to:
(c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection 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.
Pursuant to the authorities in the Federal Advisory Committee Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393), the Modoc National Forest's Modoc County Resource Advisory Committee will go on a field trip Monday, July 14, on the Warner Mountain Ranger District.
The Modoc County Resource Advisory Committee will hold a business meeting on Monday, July 21, in the Forest Supervisors' Office in Alturas, California from 6 to 8 pm. The field trip and business meeting are open to the public.
The field trip will visit actual and proposed project sites on the Warner Mountain Ranger District. The business meeting July 21, begins at 6 p.m., at the Modoc National Forest Office, Conference Room, 800 West 12th St., Alturas. Agenda topics will include approval of the June 9 minutes, consideration of new projects 2004, and discuss community outreach for projects for fiscal year 2004 that will improve the maintenance of existing infrastructure, implement stewardship objectives that enhance forest ecosystems, provide economic benefits and restore and improve health and water quality that meet the intent of Public Law 106-393. Time will also be set aside for public comments at the beginning of the meeting.
Forest Supervisor Stan Sylva, at (530) 233-8700; or Public Affairs Officer Nancy Gardner at (530) 233-8713.
Import Administration, International Trade Administration, Department of Commerce.
Notice of initiation of antidumping and countervailing duty administrative reviews and request for revocation in part.
The Department of Commerce has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with May anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews. The Department of Commerce also received a request to revoke one antidumping duty order in part.
July 1, 2003.
Holly A. Kuga, Office of AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-4737.
The Department has received timely requests, in accordance with 19 CFR 351.213(b) (2002), for administrative reviews of various antidumping and countervailing duty orders and findings with May anniversary dates. With respect to Certain Softwood Lumber Products from Canada, the initiation of the antidumping administrative review for that case is being published in a separate notice. The Department also received a timely request to revoke in part the antidumping duty order on Certain Polyester Staple Fiber from the Republic of Korea.
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than May 31, 2004.
None.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under section 351.211 or a determination under section 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305.
These initiations and this notice are in accordance with section 751(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1675(a)), and 19 CFR 351.221(c)(1)(i).
Import Administration, International Trade Administration, Department of Commerce.
Preliminary results of antidumping duty changed circumstances review and notice of intent to revoke order and to rescind administrative review.
On May 23, 2003, the Department of Commerce (the Department) published a notice of initiation of a changed circumstances review with the intent to revoke the antidumping order on fresh Atlantic salmon from Chile.
July 1, 2003.
Keith Nickerson or Constance Handley, at (202) 482-3813 or (202) 482-0631, respectively; AD/CVD Enforcement Office 5, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230.
On July 30, 1998, the Department issued an antidumping duty (AD) order on fresh Atlantic salmon from Chile.
On July 31, 2002, in accordance with 19 CFR 351.213(b)(2003), L.R. Enterprises, Inc. (L.R. Enterprises) requested a review of 90 producers/exporters of fresh Atlantic salmon review, covering the period July 1, 2001, through June 30, 2002. Twelve respondents also requested reviews of themselves. On August 27, 2002, the Department published the notice of initiation of this AD administrative.
On April 29, 2003, L.R. Enterprises withdrew its request that the Department conduct reviews of the remaining 13 producers/exporters of fresh Atlantic salmon from Chile. Furthermore, L.R. Enterprises stated that it had no interest in maintaining the AD order. Subsequently, by letters dated April 29, 2003, five U.S. producers of fresh Atlantic salmon,
On May 23, 2003, the Department published a notice of initiation of a changed circumstances review with the intent to revoke the AD order on fresh Atlantic salmon from Chile. In the Initiation Notice, we indicated that interested parties could submit comments for consideration in the Department's preliminary results no later than 20 days after publication of the initiation of the review, and submit rebuttal to those comments no later than 10 days following the submission of comments. We did not receive any comments.
The product covered by this order is fresh, farmed Atlantic salmon, whether imported “dressed” or cut. Atlantic salmon is the species
Excluded from the scope are (1) fresh Atlantic salmon that is “not farmed” (
The merchandise subject to this order is classifiable as item numbers 0302.12.0003 and 0304.10.4093 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS statistical reporting numbers are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Pursuant to sections 751(d)(1) and 782(h)(2) of the Tariff Act of 1930, as amended (the Act), the Department may revoke an antidumping or countervailing duty order, in whole or in part, based on a review under section 751(b) of the Act (
In addition, if final revocation of the order occurs, we intend to instruct the U.S. Bureau of Customs and Border Protection (BCBP) to discontinue the suspension of liquidation and to refund any estimated antidumping duties collected for all unliquidated entries of fresh Atlantic salmon from Chile entered, or withdrawn from warehouse, for consumption on or after July 1, 2001. We will also instruct the BCBP to pay interest on any refunds with respect to the subject merchandise entered, or withdrawn from warehouse, for consumption on or after July 1, 2001, in accordance with section 778 of the Act. The current requirement for a cash deposit of estimated antidumping duties will continue until publication of the final results of this changed circumstances review or other administrative review. We also note that if these preliminary results become final, we intend to rescind the current antidumping duty administrative review covering the period July 1, 2001, through June 30, 2002.
Interested parties wishing to comment on these results may submit briefs to the Department no later than 10 days after the publication of this notice in the
The Department will issue its final results of this review in accordance with 19 CFR 351.216(e), and will publish these results in the
This notice is in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216, 351.221(b), and 351.222(g)(3)(I).
Import Administration, International Trade Administration, Department of Commerce.
Notice of initiation of antidumping duty administrative review.
The Department of Commerce (the Department) has received requests to conduct an administrative review of the antidumping duty order on Certain Softwood Lumber Products from Canada. This order has a May
July 1, 2003.
Holly A. Kuga, Office of AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-4737.
The Department has received timely requests, in accordance with 19 CFR 351.213(b)(2003), for an administrative review of the antidumping duty order on Certain Softwood Lumber Products from Canada. This order has a May anniversary date.
In accordance with section 19 CFR 351.221(c)(1)(i), we are initiating an administrative review of the following antidumping duty order. We intend to issue the final results of this review not later than May 31, 2004.
During any administrative review, covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under section 351.211 or a determination under section 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine whether antidumping duties have been absorbed by an exporter or
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305.
This initiation and this notice are in accordance with section 751(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1675(a)), and 19 CFR 351.221(c)(1)(i).
Notice of application to amend an Export Trade Certificate of Review.
The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review (“Certificate”). This notice summarizes the proposed amendment and requests comments relevant to whether the Certificate should be issued.
Jeffrey C. Anspacher, Director, Office of Export Trading Company Affairs, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or E-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Office of Export Trading Company Affairs, International Trade Administration, Department of Commerce, Room 1104H, Washington, DC 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 84-14A12.”
Northwest Fruit Exporters' (“NFE”) original Certificate was issued on June 11, 1984 (49 FR 24581, June 14, 1984) and previously amended on May 2, 1988 (53 FR 16306, May 6, 1988); September 21, 1988 (53 FR 37628, September 27, 1988); September 20, 1989 (54 FR 39454, September 26, 1989); November 19, 1992 (57 FR 55510, November 25, 1992); August 16, 1994 (59 FR 43093, August 22, 1994); November 4, 1996 (61 FR 57850, November 8, 1996); October 22, 1997 (62 FR 55783, October 28, 1997); November 2, 1998 (63 FR 60304, November 9, 1998); October 20, 1999 (64 FR 57438, October 25, 1999); October 16, 2000 (65 FR 63567, October 24, 2000); October 5, 2001 (66 FR 52111, October 12, 2001); and October 3, 2002 (67 FR 62957, October 9, 2002). A summary of the application for an amendment follows.
1. Add each of the following companies as a new “Member” of the Certificate within the meaning of section 325.2(1) of the Regulations (15 CFR 325.2(1)): Cervantes Packing and Storage, LLC, Sunnyside, Washington; Fox Orchards, Mattawa, Washington; and Garrett Ranches Packing, Wilder, Idaho;
2. Delete the following companies as “Members” of the Certificate: Keystone Fruit Co., L.L.C. dba Keystone Ranch, Riverside, Washington; Naumes, Inc., Chelan, Washington; Phillippi Fruit Co., Inc., Wenatchee, Washington; and Valicoff Fruit Company, Wapato, Washington; and
3. Change the listing of the following Members: “Bertha's Marketing, Inc., Wenatchee, Washington” to the new listing “Bertha's Marketing Inc., Wenatchee, Washington”; “Lloyd Garretson, Co., Yakima, Washington” to the new listing “Lloyd Garretson Co., Yakima, Washington”; “Sund-Roy, L.L.C., Yakima, Washington” to the new listing “Sund-Roy L.L.C., Yakima, Washington”; “Trout-Blue Chelan, Inc., Chelan, Washington” to the new listing “Chelan Fruit Company, Chelan, Washington”; and “Valley Fruit III, LLC, Wapato, Washington” to the new listing “Valley Fruit III LLC, Wapato, Washington”.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability and request for comment.
Notice is hereby given that the Washington Department of Fish and Wildlife (WDFW) has submitted a Fisheries Management and Evaluation Plan (FMEP) pursuant to the protective regulations promulgated for Middle Columbia River (MCR) steelhead and Lower Columbia River (LCR) chinook salmon under the Endangered Species Act (ESA). The FMEP specifies the future management of inland recreational fisheries potentially affecting the MCR steelhead and LCR
Written comments on the draft FMEPs must be received at the appropriate address or fax number (see
Written comments and requests for copies of the draft FMEP should be addressed to Richard Turner, Salmon Recovery Division, Propagation, Tributary Fisheries, and Recovery Branch, 525 N.E. Oregon Street, Suite 510, Portland, OR 97232 or faxed to (503) 872-2737. The documents are also available on the Internet at
Richard Turner, Portland, OR, at phone number (503) 736-4737, or e-mail:
This notice is relevant to the Middle Columbia River steelhead (Oncorhynchus mykiss) and Lower Columbia River chinook salmon (
WDFW has submitted to NMFS an FMEP (Mid-Columbia Region) for inland recreational fisheries potentially affecting listed adult and juvenile MCR steelhead and LCR chinook salmon. These include fisheries occurring in the Little White Salmon, White Salmon, Klickitat, Walla Walla, and Yakima Rivers. The objective of the FMEP is to harvest known hatchery-origin steelhead and salmon and other fish species in a manner that does not jeopardize the survival and recovery of the MCR steelhead and the LCR chinook salmon ESUs. All fisheries included in the FMEP will be managed such that the retention of adult steelhead that are not externally marked (i.e., do not have the adipose fin clipped) will be prohibited. Only hatchery-origin steelhead that are adipose-fin clipped may be retained. Tule fall chinook from the LCR chinook salmon ESU will also be harvested in tributary recreational fisheries. Impact levels to listed MCR steelhead and LCR chinook salmon are specified in the FMEP. Population viability analysis and risk assessments in the FMEP indicate the extinction risk for listed steelhead and salmon under the proposed fishery impact levels to be low. A variety of monitoring and evaluation tasks are specified in the FMEP to assess the abundance of steelhead and salmon, determine fishery effort and catch of steelhead and salmon, and angler compliance. A review of compliance with the provisions of the FMEP will be conducted by WDFW annually and a comprehensive review to evaluate the effectiveness of the FMEP will occur at a minimum every 5 years.
Under section 4 of the ESA, the Secretary of Commerce is required to adopt such regulations as he deems necessary and advisable for the conservation of species listed as threatened. The ESA salmon and steelhead 4(d) rule specifies categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. The rule further provides that the prohibitions of paragraph (a) of the rule will not apply to activities associated with fishery harvest provided that those fisheries are managed in accordance with an FMEP that has been approved by NMFS and implemented in accordance with a letter of concurrence from NMFS.
As specified in § 223.203 (b)(4) of the ESA 4(d) rule, NMFS may approve an FMEP if it meets criteria set forth in § 223.203 (b)(4)(i)(A) through (I). Prior to final approval of an FMEP, NMFS must publish notification announcing its availability for public review and comment.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability and request for comment.
This notice advises the public that the Nez Perce Indian Tribe has submitted a Tribal resource management plan (Tribal Plan) to NMFS pursuant to the limitation on take prohibitions for actions conducted under Tribal Plans promulgated under the Endangered Species Act. The Tribal Plan specifies the management of recreational, ceremonial, and subsistence fisheries in 2003 in the Imnaha River subbasin in the State of Oregon that potentially affect Snake River spring/summer chinook salmon listed as threatened under the ESA. This document serves to notify the public of the availability for comment of the proposed evaluation of the Secretary of Commerce (Secretary) as to whether implementation of the Tribal Plan will appreciably reduce the likelihood of survival and recovery of Snake River salmon and steelhead, and the availability for public comment of a draft environmental assessment on the proposed action.
Written comments on the Secretary's pending determination and the draft assessment must be received at the appropriate address or fax number (see
Written comments and requests for copies of the draft HGMPs should be addressed to Herb Pollard, Sustainable Fisheries Division, 10215 W. Emerald St. Suite 180, Boise, ID 83704. Comments may also be sent via fax to (208) 378-5699. The document is also available on the Internet at
Herb Pollard at phone number: 208/378-5614, or e-mail:
This notice is relevant to the Imnaha River subbasin population of the Snake River Spring/Summer Chinook salmon (
The Nez Perce Tribe has submitted to NMFS a Tribal Plan for recreational, ceremonial, and subsistence fisheries in 2003 potentially affecting threatened Snake River spring/summer chinook salmon in the Imnaha River basin. The Tribal Plan includes recreational fisheries specified by the Oregon Department of Fish and Wildlife that take place in the same waters and in the same time frame as the tribal ceremonial and subsistence fisheries. The Nez Perce Tribe and the State of Oregon have co-manager responsibilities for spring chinook salmon within the Imnaha River sub-basin and manage this salmon population under cooperative agreements. The objective of the Tribal Plan is to harvest spring chinook in a
As required by the ESA 4(d) rule for Tribal Plans (65 FR 42481, July 10, 2000 [50 CFR 223.209]), the Secretary is seeking public comment on his pending determination as to whether the Tribal Plan for Imnaha River chinook salmon would appreciably reduce the likelihood of survival and recovery of the threatened Snake River spring/summer chinook salmon ESU.
Under section 4 of the ESA, the Secretary is required to adopt such regulations as he deems necessary and advisable for the conservation of the species listed as threatened. The ESA Tribal 4(d) Rule (65 FR 42481, July 10, 2000 [50 CFR 223.209]) states that the ESA section 9 take prohibitions will not apply to Tribal Plans that will not appreciably reduce the likelihood of survival and recovery for the listed species.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Final Determination and Discussion of Underlying Biological Analysis.
NMFS has evaluated the joint resource management plan (RMP) for harvest of Puget Sound chinook salmon provided by the Puget Sound Treaty Tribes and the Washington Department of Fish and Wildlife (WDFW) pursuant to the protective regulations promulgated for Puget Sound chinook salmon under the Endangered Species Act (ESA). The RMP specifies the management of commercial, recreational and tribal salmon fisheries and steelhead net fisheries that potentially affect listed Puget Sound chinook salmon from May 1, 2003, through April 30, 2004. This document serves to notify the public that NMFS, by delegated authority from the Secretary of Commerce, has determined pursuant to the Tribal Rule and the government-to-government processes therein that implementing and enforcing the RMP will not appreciably reduce the likelihood of survival and recovery of the Puget Sound chinook salmon Evolutionarily Significant Unit (ESU).
The final determination on the take limit was made on May 20, 2003.
Sustainable Fisheries Division, National Marine Fisheries Service, 7600 Sand Point Way NE, Seattle, WA 98115-0070.
Susan Bishop at: (206) 526-4587, or e-mail:
This notice is relevant to the Puget Sound chinook salmon (
In February of this year, the Puget Sound Treaty Tribes and the WDFW (co-managers) provided a jointly developed RMP that encompasses Washington coastal and Puget Sound salmon fisheries affecting the Puget Sound chinook salmon ESU. The RMP is effective from May 1, 2003, through April 30, 2004. Harvest objectives specified in the RMP account for fisheries-related mortality of Puget Sound chinook throughout its migratory range, from Oregon and Washington to Southeast Alaska. The RMP also includes implementation, monitoring and evaluation procedures designed to ensure fisheries are consistent with these objectives. On April 2, 2003, at 68 FR 16001, NMFS published a notice of availability for public review and comment in the
As required by § 223.203 (b)(6) of the ESA 4(d) rule, NMFS must determine pursuant to 50 CFR 223.209 and pursuant to the government-to-government processes therein whether the RMP for Puget Sound chinook would appreciably reduce the likelihood of survival and recovery of the Puget Sound chinook and other affected threatened ESUs. NMFS must take comments on how the RMP addresses the criteria in § 223.203 (b)(4) in making that determination.
The RMP's approach to establishing management objectives is risk averse and progressive, including: (1) management objectives, based on natural production and natural spawning, have been established for the majority of naturally producing populations which historically had self-sustaining chinook populations and for which data is available these management units represent the entire range of life history types (races) and geographic distribution that comprise the Puget Sound chinook salmon ESU; (2) the RMP derives exploitation rates based on conservative, quantifiable standards directly related to recovery, which take into account scientific uncertainty; (3) in isolating the effect of harvest on survival and recovery, the approach is valuable in ensuring that harvest actions do not impede recovery, regardless of the contribution of the other “Hs” (hatcheries, habitat, hydropower) at the same time, the approach is linked to the other Hs by taking into account current environmental and habitat conditions; and (4) the proposed objectives are generally consistent with NMFS' rebuilding exploitation rates (RER), population standards previously used to assess the likelihood of survival and recovery of the Puget Sound chinook salmon ESU. These standards included an assessment of the long-term effects of exploitation rates at these levels; (5) the RMP includes specific and integrated monitoring programs to maintain and improve population assessment methodologies as well as evaluate the
NMFS published notice of its Proposed Evaluation and Pending determination on the RMP for public review and comment on April 2, 2003 (68 FR 16001). The comment period closed on April 17, 2003. Washington Trout submitted comments to NMFS on the Proposed Evaluation and Pending Determination during this public comment period. No other comments were received during the public comment period. Several of the comments were addressed and reflected in NMFS' final Evaluation and Recommended Determination but no substantial changes were made in that document, and no changes were required of the 2003 RMP. NMFS considered all comments before issuing its final determination on the Puget Sound chinook RMP.
The public comments received and NMFS' response are summarized here. The commenter questioned the use of incomplete catch and escapement information in the calculation of exploitation rates. The commenter also questioned the uncertainty of the data, in particular as it related to estimating survival rates by age and mortality rates by fishery. NMFS recognizes that there will be some uncertainty associated with whatever information is available, and considers the degree of uncertainty when making its decisions. To address these uncertainties, the data analyses incorporated variability around the productivity and capacity stock-recruit parameters, survival variables and management error. In making its determination on the 2003 RMP, NMFS determined that the data uncertainties did not represent a substantial risk in the short term to the ESU, and that the benefits to the ESU in immediate implementation of the one-year plan outweighed the risks represented by the uncertainty in the data.
The commenter suggested that the potential changes in life history of chinook salmon due to the intensity of the fisheries for select biological traits (such as age, sex, or size) may be more than modest. Based on the best available information, the anticipated exploitation rates in 2003 are expected to result in no, or at worst modest, changes in the biological traits of these populations with the implementation of this 1-year 2003 RMP. However, NMFS recognizes the potential for selective effects of fisheries and will continue to monitor them.
The commenter suggested that some management units within this classification have exploitation rates greater then 50 percent, and in those cases the exploitation rate would appreciably slow rebuilding to viable function. NMFS' critical thresholds are consistent with the concepts in the Viable Salmon Populations (VSP) document (NMFS 2000b, as cited in the Evaluation and Recommended Determination), which includes the concept of depensatory mortality (see page 12 of NMFS 2000b, as cited in Evaluation and Recommended Determination). Based on past performances of the fisheries under similar conditions, the current status of the populations, and the preliminary 2003 return information, it is expected that the implementation of the 2003 RMP will not appreciably reduce the likelihood of the ESU's survival and recovery or preclude most populations' movement toward achieving viable VSP thresholds, as required by the ESA 4(d) rule.
The commenter suggested that improved survival may be more responsible for the observed increasing escapement trend. NMFS recognizes that it is a combination of factors that have contributed to the observed stable to increasing five-year trends in escapement, including harvest actions. Overall, escapements observed under the 2001 RMP have been some of the highest during the five-year period reviewed for Puget Sound chinook salmon populations. The management objectives in the 2001 RMP are similar to the management objectives in the 2003 RMP. Based on the past performances of the fisheries under similar conditions, the current status of the populations, and the preliminary 2003 return information, it is expected that the 2003 RMP will continue the stable to increasing 5-year trends in escapement.
The commenter questioned the appropriateness of allowing impacts on a below-critical threshold population merely because the 2003 RMP demonstrates that the likelihood of survival and recovery of the entire ESU in the wild would not be appreciably reduced. NMFS followed directions provided in the ESA 4(d) rule in assessing the effects of the RMP on populations below their critical thresholds, including the Dosewallips River and Nooksack River populations. The Dosewallips River population is within the Mid-Hood Canal Management Unit. The characteristics of this population, including life history and run timing, are represented by the other population in the Hood Canal region and by other populations within the ESU. Additionally, the role of the undefined spawning aggregations in the adjacent Hamma Hamma and the Duckabush Rivers in recovery and their relationship with the Dosewallips River population may be clarified as further information becomes available. Because it is possible that production in the Hamma Hamma and the Duckabush Rivers may contribute to the stability of the Dosewallips River population, NMFS' assessment of the impacts of the 2003 RMP on the Dosewallips should be considered conservative.
NMFS concludes in the Evaluation and Recommended Determination that the potential higher risk that the Dosewallips River population may be expected to experience in 2003, in this 1-year harvest management plan, will not appreciably reduce the likelihood of the ESU's survival and recovery.
Additional risk to the North Fork Nooksack River population may be expected in 2003, under the 2003 RMP, primarily due to the anticipated total exploitation rate, in which the Canadian fisheries will account for the majority of the exploitation, exceeding NMFS' rebuilding exploitation rate ceiling for this population. The treaty tribes have a right and priority to conduct their fisheries within the limits of conservation constraints. Because of the Federal government's trust responsibility to the tribes, NMFS is committed to considering the co-managers' judgment and expertise when it comes to the conservation of trust resources. However, the opinion of the co-managers and their immediate interest in fishing is balanced against NMFS' responsibilities under ESA. Based on these considerations, NMFS concluded in the Evaluation and Recommended Determination that the 2003 RMP Nooksack Management Unit's minimum fishery regime exploitation rate that would be imposed on the southern United States fisheries in 2003, in this 1-year 2003 RMP, achieves this balance.
Under section 4 of the ESA, NMFS, by delegated authority from the Secretary of Commerce, is required to adopt such regulations as it deems necessary and advisable for the conservation of the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of five scientific research permits/modifications (1140, 1156, 1309, 1315, 1376).
Between April 21 and May 6, 2003, NMFS' Northwest Region issued the above noted research permits and permit modifications allowing endangered and threatened species of Pacific salmon and steelhead to be taken for scientific research purposes under the Endangered Species Act (ESA). The research actions and the species they affect are listed in the
The permits, permit applications, and related documents are available for review during business hours by appointment at NMFS' Protected Resources Division, F/NWO3, 525 NE Oregon Street, Suite 500, Portland, OR 97232-2737 (phone: 503-230-5400, fax: 503-230-5435).
Garth Griffin, Portland, OR (phone: 503-231-2005, fax: 503-230-5435, e-mail:
The ESA requires that permits and permit modifications be issued based on findings that such actions: (1) are applied for in good faith; (2) would not operate to the disadvantage of the listed species that are the subject of the actions; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA. Authority to take listed species is subject to conditions set forth in the permits. Permits, modifications, and amendments are issued in accordance with, and are subject to, the ESA and NMFS regulations governing listed fish and wildlife permits (50 CFR parts 222-226).
The ESA-listed species/evolutionarily significant units (ESUs) covered by this notice are identified below and listed in the subsequent table by the numbers that precede each of them in the following text:
(1) Threatened Puget Sound chinook salmon (
(2) Threatened Lower Columbia River chinook salmon
(3) Threatened Snake River spring/summer chinook salmon
(4) Threatened Snake River fall chinook salmon
(5) Endangered Upper Columbia River spring-run chinook salmon
(6) Threatened Upper Willamette River chinook salmon
(7) Threatened Lower Columbia River steelhead (
(8) Threatened Middle Columbia River steelhead
(9) Threatened Snake River steelhead
(10) Threatened Upper Willamette River steelhead
(11) Endangered Upper Columbia River steelhead
(12) Threatened Southern Oregon/Northern California Coasts coho salmon (
(13) Threatened Oregon Coast coho salmon
Take notice that on June 18, 2003, Gulfstream Natural Gas System, L.L.C. (Gulfstream) tendered for filing a revised Precedent Agreement between Gulfstream and Florida Power Corporation (FPC).
Gulfstream states that the purpose of this filing is to comply with the order issued by the Commission on June 9, 2003, in Docket Nos. RP02-361-000,
Gulfstream states that the instant filing complies with the directives of the June 9 Order by deleting certain provisions from the Precedent Agreement filed in this proceeding.
Gulfstream states that copies of its filing have been mailed to all affected customers, interested state commissions, and all parties listed on the Official Service List compiled by the Secretary of the Commission in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Protest Date: June 30, 2003.
Take notice that an informal settlement conference will be convened in this proceeding commencing at 10 a.m. on July 1, 2003, at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, for the purpose of exploring the possible settlement of the above-referenced dockets.
Any party as defined by 18 CFR 385.102(c), or any participant as defined by 18 CFR 385.102(b), is invited to attend. Persons wishing to become a party must move to intervene and receive intervenor status pursuant to the Commission's regulations (18 CFR 385.214).
For additional information, please contact Donald Heydt at (202) 502-8740,
Take notice that on June 20, 2003, Williston Basin Interstate Pipeline Company (Williston Basin), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following revised tariff sheets to become effective July 20, 2003:
Williston Basin states that it is proposing a number of changes to the provisions of its Receipt Point Operational Balancing Agreement (ROBA), which will enhance and provide for added flexibility for this service.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments, identified by the docket control number OEI-2003-0026, must be submitted on or before July 31, 2003.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit III. of the
For general information, contact The Emergency Planning and Community Right-to-Know Hotline at (800) 424-9346 or (703) 412-9810, TDD (800)553-7672,
Currently, those industries with the following SIC code designations (that meet all other threshold criteria for TRI reporting) must report toxic chemical releases and other waste management activities:
• 20-39, manufacturing sector
• 10, metal mining (except for SIC codes 1011, 1081, and 1094)
• 12, coal mining (except for SIC code1241 and extraction activities)
• 4911, 4931 and 4939, electrical utilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
• 4953, RCRA Subtitle C hazardous waste treatment and disposal facilities
• 5169, chemicals and allied products wholesale distributors
• 5171, petroleum bulk plants and terminals
• 7389, solvent recovery services, and
• Federal facilities in any SIC code
To determine whether you or your business is affected by this action, you should carefully examine the applicability provisions at 40 CFR part 372 and section 4(a) of the Supporting Statement of the information collection. If you have any questions regarding the applicability of this action to a particular entity, consult the person(s) listed in the
The Agency has established an official public docket for this action under Docket ID no. OEI-2003-0026. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of this official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the OEI Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202)566-1744, and the telephone number for the OEI Docket is (202)566-1752.
Electronic copies of the ICR are available from the EPA Home Page at the
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit II.A. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
For additional information about EPA's electronic public docket visit EPA Dockets online or
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number (
1.
3. By Hand Delivery or Courier. Comments may be delivered in person or by courier to: EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC, attention Docket ID No. OEI-2003-0026.
All comments which contain information claimed as CBI must be clearly marked as such. Three sanitized copies of any comments containing information claimed as CBI must also be submitted and will be placed in the public record for this document. Persons submitting information any portion of which they believe is entitled to treatment as CBI by EPA must assert a business confidentiality claim in accordance with 40 CFR 2.203(b) for each such portion. This claim must be made at the time that the information is submitted to EPA. Information covered by such a claim will be disclosed by EPA only to the extent, and by means of the procedures set forth in 40 CFR part 2, subpart B. If a confidentiality claim does not accompany the information when it is received by EPA, the information may be made available to the public by EPA without further notice to the submitter.
Pursuant to section 3506(c)(2)(a) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) 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,
EPA is seeking comments on the following ICR, as well as the Agency's intention to renew the corresponding OMB approval, which is currently scheduled to expire on October 31, 2003.
In accordance with the authority in EPCRA, EPA has established an alternate threshold for those facilities with low amounts of a listed toxic chemical in wastes. A facility that otherwise meets the current reporting thresholds, but estimates that the total amount of the chemical in waste does not exceed 500 pounds per year, and that the chemical was manufactured, processed, or otherwise used in an amount not exceeding 1 million pounds during the reporting year, can take advantage of reporting under the alternate threshold option for that chemical for that reporting year.
Each qualifying facility that chooses to apply the revised threshold must file the Form A Certification Statement (EPA Form 9350-2) in lieu of a complete TRI reporting Form R (EPA Form 9350-1). In submitting the Form A Certification Statement, the facility certifies that the sum of the amount of the EPCRA section 313 chemical in wastes did not exceed 500 pounds for
The Form A Certification Statement provides communities with information that the chemical is being manufactured, processed or otherwise used at facilities. Additionally, the Form A Certification Statement provides compliance monitoring and enforcement programs and other interested parties with a means to track chemical management activities and verify overall compliance with the rule. Responses to this collection of information are mandatory (
Under the PRA, “burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. For this collection, it includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
The annual public burden for this collection of information, which is approved under OMB Control No. 2070-0143, is estimated to average 13.7 hours for facilities submitting a Form A Certification Statement for a single listed chemical. By comparison, the average time required for calculations, form completion and record keeping/mailing for Form R is estimated to average 19.5 hours per form. Thus, for a facility filing a Form A certification for a single chemical, the alternate threshold yields an average savings of 5.8 hours.
The ICR supporting statement provides a detailed explanation of the burden estimates that are summarized in this notice. The following is a summary of the estimates taken from the ICR supporting statement:
The estimated burden described above differs from what is currently in OMB's inventory for alternate threshold reporting: 5,121 responses (Form A Certification Statements) and 463,670 burden hours. The burden estimated in this supporting statement differs from OMB's inventory as a result of adjustments to estimates of number of responses (from 5,121 responses to 5,000 responses), changes to subsequent year unit reporting burden estimates (from 30.2 to 9.2 burden hours per chemical certified on a Form A Certification Statement), and an adjustment for use of TRI-ME for those forms completed using TRI-ME. These changes are described in greater detail in the supporting statement for this ICR, available in the public version of the official record.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments, identified by the docket control number OEI-2003-0025 must be submitted on or before September 2, 2003.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit III. of the
For general information contact: The Emergency Planning and Community Right-to-Know Hotline at (800) 424-9346 or (703) 412-9810, TDD (800) 553-7672,
Currently, those industries with the following SIC code designations (that meet all other threshold criteria for TRI reporting) must report toxic chemical releases and other waste management activities:
• 20-39, manufacturing.
• 10, metal mining (except for SIC codes 1011, 1081, and 1094).
• 12, coal mining (except for SIC code 1241 and extraction activities).
• 4911, 4931 and 4939, electrical utilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
• 4953, RCRA subtitle C hazardous waste treatment and disposal facilities.
• 5169, chemicals and allied products wholesale distributors.
• 5171, petroleum bulk plants and terminals.
• 7389, solvent recovery services, and
• Federal facilities in any SIC code.
To determine whether you or your business is affected by this action, you should carefully examine the applicability provisions at 40 CFR part 372 and section 3(a) of the Supporting Statement of the information collection. If you have any questions regarding the applicability of this action to a particular entity, consult the person(s) listed in the
The Agency has established an official public docket for this action under Docket ID no. OEI-2003-0025. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of this official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the OEI Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
Electronic copies of the ICR are available from the EPA home page at the
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
For additional information about EPA's electronic public docket visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number (
All comments which contain information claimed as CBI must be clearly marked as such. Three sanitized copies of any comments containing information claimed as CBI must also be submitted and will be placed in the public record for this document. Persons submitting information any portion of which they believe is entitled to treatment as CBI by EPA must assert a business confidentiality claim in accordance with 40 CFR 2.203(b) for each such portion. This claim must be made at the time that the information is submitted to EPA. Information covered by such a claim will be disclosed by EPA only to the extent, and by means of the procedures set forth in 40 CFR part 2, subpart B. If a confidentiality claim does not accompany the information when it is received by EPA, the information may be made available to the public by EPA without further notice to the submitter.
A. Pursuant to section 3506(c)(2)(a) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) 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,
B. Proposed changes to the Form R:
A revised draft Form R is included in this ICR. The draft Form R collects all the same information as the prior form; however, it collects that information in a different format. There are no changes to part I of the Form R. EPA is proposing changes to part II of the Form R based on feedback received from stakeholders through various venues (
Also, in light of feedback received from stakeholders, EPA has broken the information collected on releases in section 8.1 of part II into four subcategories which are; total onsite uncontained releases; total onsite contained disposal; total offsite uncontained releases; and total offsite contained disposal. The category of contained disposal would include the quantities sent to on-site or off-site landfills and Class I Underground Injection Control wells. This would provide a more complete characterization of TRI chemicals in waste streams by distinguishing between releases to ambient media and releases to managed facilities consistent with environmental reporting requirements under other laws. The presence of only one of these factors is not considered enough to consider the release “contained”; for example, regulated air stack emissions are clearly not contained releases. Therefore, all
EPA is interested in receiving comments on the proposed changes to the Form R and is particularly interested in receiving comment on whether the individual waste streams in section 5 are appropriately classified as either contained or uncontained for section 8. In addition, the Agency is soliciting input on whether the headings used in section 8 are appropriate to describe the intended categories.
EPA is seeking comments on the following ICR, as well as the Agency's intention to renew the corresponding OMB approval, which is currently scheduled to expire on October 31, 2003.
Annual reporting under EPCRA section 313 of toxic chemical releases and other waste management information provides citizens with a more complete picture of the total disposition of chemicals in their communities and helps focus industries' attention on pollution prevention and source reduction opportunities. EPA believes that the public has a right to know about the disposition of chemicals within communities and the management of such chemicals by facilities in industries subject to EPCRA section 313 reporting. This reporting has been successful in providing communities with important information regarding the disposition of toxic chemicals and other waste management information of toxic chemicals from manufacturing facilities in their areas.
EPA collects, processes, and makes available to the public all of the information collected. The information gathered under these authorities is stored in a database maintained at EPA and is available through the Internet. This information, commonly known as the Toxics Release Inventory (TRI), is used extensively by both EPA and the public sector. Program offices within EPA use TRI data, along with other sources of data, to establish priorities, evaluate potential exposure scenarios, and undertake enforcement activities. Environmental and public interest groups use the data in studies and reports, making the public more aware of releases of chemicals in their communities.
Comprehensive publicly-available data about releases, transfers, and other waste management activities of toxic chemicals at the community level are generally not available, other than under the reporting requirements of EPCRA section 313. Permit data are often difficult to obtain, are not cross-media and present only a limited perspective on a facility's overall performance. With TRI, and the real gains in understanding it has produced, communities and governments know what toxic chemicals industrial facilities in their area release, transfer, or otherwise manage as waste. In addition, industries have an additional tool for evaluating efficiency and progress on their pollution prevention goals.
Responses to the collection of information are mandatory (
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Under the PRA, “burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. For this collection, it includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
The ICR supporting statement provides a detailed explanation of this estimate, which is only briefly summarized in this notice. The annual public burden for this collection of information is estimated to average 19.5 hours per response. The following is a summary of the estimates taken from the ICR:
As a result of OMB's 03/10/2003 approval of the last ICR renewal, OMB's inventory reflects 88,117 responses and 5,566,564 hours for this information collection. This ICR supporting statement is for 84,000 responses and 2,403,867 hours. The reduction in burden of approximately 3.16 million hours is the result of three adjustments.
The first adjustment is to the number of responses. The estimate of 88,117 responses in the existing OMB approval incorporated a predicted reporting increase from the economic analysis of the final rule to lower reporting thresholds for lead and lead compounds. This prediction overestimated actual reporting levels; EPA received about 70 percent of the additional lead and lead compound reports that were forecast. The number of responses in this ICR supporting statement have been adjusted to
The second adjustment is to the unit burden hours. EPA has adjusted the estimate of unit burden hours for Form R completion in subsequent years from 47.1 hours to 14.5 hours based on responses from actual TRI reporting facilities. This adjustment accounts for a decrease of about 2.68 million hours.
The third adjustment relates to the adoption of TRI-ME, an automated reporting software package. EPA has reduced the burden estimates related to Form R Completion and Recordkeeping/Submission by 25 percent for the reports filed using TRI-ME. On an annualized basis, an estimated 60 percent of reports are expected to be filed using TRI-ME over the three years of the ICR. This adjustment accounts for a decrease of about 261,000 hours.
The sum of these adjustments is a decrease of 4,117 responses and 3,162,697 burden hours from the current approved total. These adjustments are described in further detail in the supporting statement for this ICR, available in the public version of the official record.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
Fiscal Year 2003, Environmental Protection Agency, deadline for letter of intent, August 11, 2003;
This action known as the Solicitation Notice for the Children's Environmental Health Protection State Level Collaboration to Address Childhood Asthma Initiative, Fiscal Year 2003 announces the availability of funds from the Environmental Protection Agency's (EPA) Office of Children's Health Protection (OCHP), to support the efforts of state environment and health agencies together to minimize the environmental factors that exacerbate asthma symptoms in children.
Section 103 of the Clean Air Act (CAA) authorizes EPA's Administrator to conduct and promote the coordination and acceleration of research, investigations, experiments, demonstrations, surveys and studies relating to the causes, effects (including health and welfare effects), extent, prevention, and control of air pollution by making grants to air pollution control agencies, to other public or nonprofit private agencies, institutions, and organizations for purposes stated in section 103(a)(1)
The goal of the Children's Environmental Health Protection program (hereinafter “the Initiative”) is to minimize and/or eliminate children's exposure to environmental health threats— recognizing children's special vulnerability to these threats and recognizing the possibility of preventable childhood exposures leading to lifelong, irreversible consequences. This program is included within the Catalogue for Domestic Assistance (CFDA) listing number: 66.609 found at
In recent years, EPA's Office of Children's Health Protection has encouraged and supported collaboration between state level health and environment agencies toward the end of building state capacity to combat childhood asthma.
Since the summer of 2001, the Environmental Council of the States (ECOS) has collaborated with the Association of State and Territorial Health Officials (ASTHO) and the U.S. Environmental Protection Agency to design a flexible template for state level strategies and actions to minimize environmental factors that contribute to asthma in children.
This focus on environmental factors complements the on-going Centers for Disease Control (CDC) state asthma program which recognizes the need to address environmental factors but does not explicitly provide guidance or support for this aspect of disease prevention and control. This action may also complement Housing and Urban Development's (HUD) Healthy Homes Initiative, which supports effective home assessment and intervention programs as well as public education.
Throughout 2002, ECOS, ASTHO, and EPA hosted a series of four workshops to refine the details of a cooperative approach in four specific areas: Data, environmental factors in homes, environmental factors in schools and child care facilities, and outdoor environmental factors.
The eligible funding categories and guiding principles of this Request for Applications are a reflection of the draft action agenda, Catching Your Breath,
The Initiative plans to award assistance agreements (grants and cooperative agreements) to state health and environment agencies and/or regional air authorities with formal delegated authorities with a project
The specific funding priorities for each category are described in detail below.
For this competition, the Initiative anticipates making available approximately $360,000 under this solicitation to fund approximately 9 to 12 awards. The dollar amount of each award will vary depending upon Initiative priorities, proposal quality and level of activity, and resource availability. Proposals for less than $20,000 or greater than $50,000 will not be considered. EPA reserves the right to reject all proposals and make no awards.
Projects not selected for award under this solicitation will be retained on file and made available to other EPA offices for potential funding for a period of one year from the date of receipt by EPA. This solicitation notice contains all the information and forms necessary to prepare a Letter of Intent. Should your Letter of Intent be approved, this solicitation package directs you to web and mailed sources of the application kit for a Full Proposal. If your Full Proposal is selected for possible award, your EPA Regional Office will supply you with additional Federal forms needed to process your Full Proposal for award.
(1) The Initiative Solicitation will be issued on or about July 11, 2003.
(2)
(3) Confirmation of Receipt of the e-mailed Letter of Intent will be issued not more than 7 business days after receipt by the Agency. Applicant should follow-up by phone immediately to 202-564-2646 if acknowledgement from EPA is not received within this time period.
(4) Applicants submitting a Letter of Intent will be notified via e-mail on or before August 22, 2003 if they are deemed eligible to participate in the Pre-application Assistance Call and to submit a Full Proposal.
(5) Pre-application Assistance Call will be held on September 3, 2003. Applicants with accepted Letters of Intent who expressed an interest in participating in the Pre-application Assistance Call will be advised via e-mail of the call-in number.
(6) Due Date—October 6, 2003, for Full Proposals from invited eligible applicants to be delivered to the courier for shipment or postmarked (
(7) Applicants will receive an e-mail notification of receipt of the Full Proposal within one month of receipt by the Agency.
(8) Selected projects will be announced on or around December 1, 2003.
(9)
(10)
If Full Proposals are mailed, send them to: Bettina Fletcher, U.S. EPA, Office of Children's Health Protection, 1200 Pennsylvania Ave, NW., Mail Code 1107A, Room 2512 Ariel Rios North, Washington, DC 20460.
To be eligible to compete for these assistance funds, applicants must:
(1) Meet standards for eligibility described in section 103(b)(3) of the CAA (
(2) Represent one of the states from EPA Regions 2 through 10. States from EPA's Region 1 (CT, MA, ME, NH, RI, and VT) may not apply under this grant. Assistance programs in this area for these states were addressed through a different solicitation.
(3) Adhere to the provisions of The Executive Order 12372, “Intergovernmental Review of Federal Programs” (SPOC List) applies.
(4) Demonstrate that you are a state health, or environment or a regional air authority with formal delegated authority. While only these agencies may be the direct recipients and lead project administrators of the project, other partners are eligible for compensation through sub-contracting agreement(s) between the lead agency and collaborating partners as long as the state agency maintains a substantive role in the project.
Projects that include and demonstrate a substantive and active collaboration between a state health agency and a state environment agency will be evaluated more favorably. (
(a) Both agencies dedicating personnel;
(b) Agencies co-sponsoring crucial meetings; or
(c) Both agencies being involved in peer reviews of documents and/or products.
(1) Special Note to EPA Region 1 States:
The EPA Region 1 states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont are expressly
State organizations within one state may submit more than one proposal if the proposals are for different projects. However, no more than one grant will be awarded to a state during the same fiscal year. State organizations are
(1) Salaries/fringe;
(2) Travel;
(3) Communications;
(4) Equipment rental;
(5) Indirect overhead;
(6) Public outreach efforts (workshops, public forums, meeting expenses);
(7) Office expenses;
(8) Printing and copying;
(9) Conference and promotional materials; and
(10) Web site dissemination of information related to the project.
(1) Capital improvements;
(2) Construction projects;
(3) Lobbying or political activities;
(4) Formal education;
(5) Entertainment;
(6) Remediation and removal ;
(7) Provision of medical equipment and supplies;
(8) Air sampling; and
(9) Grants solely for equipment purchases.
All states have a long history of working on childhood asthma. However, asthma has been seen traditionally as a health issue alone. In the course of the ECOS/ASTHO work with the states, states have become increasingly aware of the need for state environment and health agencies to develop collaboratively state strategies and actions to minimize environmental factors that contribute to asthma in children. Applicants are strongly encouraged to review the ECOS/ASTHO state draft action agenda, Catching Your Breath, at
To help states progress regardless of where they are on the continuum, OCHP has divided this solicitation into two parts or “Phases,” one for those states that are in the planning stages and one for states that are prepared to conduct demonstration projects to explore approaches to addressing the issues. These Phases are described below.
States Receiving Planning Funding from the Centers for Disease Control (CDC): In order to be eligible for EPA planning funds, you must demonstrate that the activities you propose represent gaps in your current CDC work plan. For example, you might discuss how EPA funds will substantially enhance your ability to address the environmental components of the planning process.
(a) Ensure that planning activities incorporate environmental factors relating to asthma.
(b) Ensure that the results are presented in terms that are sensitive and appropriate to the diverse languages and cultures of their audience.
All planning proposals should include a strategic planning element that bridges state environment and health departments. Proposals may also focus on achieving results in one or more of the other Initiative areas listed below:
(a)
This strategic planning may be accomplished as a component of a larger state planning process to comprehensively address asthma. If the applicant is a CDC planning grant recipient, the strategic planning activities must substantially enhance the CDC-funded process and address environmental factors.
(b)
(c)
(d)
(a) An Asthma Strategic Plan is developed and adopted by the state environmental and health organizations.
(b) Coalition “Charter” is developed, detailing: membership responsibilities, bylaws, vision or mission statement, leadership responsibilities, and a budget (funding sources secured and allocated.)
(c) An integrated tracking system is established that can be used meaningfully by both health professionals and environmental agencies.
(d) A coalition is formed that facilitates the procurement of low cost materials for building renovations.
Phase B Demonstration Project funding is intended for the development and evaluation of new approaches and is expressly NOT to be used to execute ongoing state programs.
(a) Ensure that education, training, and outreach efforts are sensitive to and appropriately address the diverse languages and cultures of their audiences.
(b) Data should be gathered, analyzed, and presented at the “smallest” level possible—smallest geographic area, shortest possible time frame, smallest age range, etc.
(c) Consider utilizing existing programs and materials from EPA and other sources prior to developing new tools. Examples of existing resources include: EPA's IAQ Tools for Schools, Smoke-free Home Pledge Campaign and public service announcement (PSA) and Asthma brochures, PSAs and media campaign.
Proposals should focus on achieving results in one or more of the Initiative areas listed below:
(a)
(b)
(c)
(d)
(a) Number of households of children with asthma that have reported reduced exposure to indoor asthma triggers.
(b) Number and names of public health organizations (HMOs, corporate wellness programs, hospitals) urging education and action to reduce the exposure of people with asthma to indoor asthma triggers, action on secondhand tobacco smoke exposure, and/or IAQ management in schools.
(c) Decreased numbers of: ER visits, in-patient hospital admissions, sick visits to primary care physicians for asthma, school days missed, rescue medication uses.
(d) Increased numbers of: symptom-free days.
(e) Estimated cost savings.
The application process involves two stages:
A Letter of Intent is due via e-mail to
(a) Name of your organization;
(b) Project name;
(c) Name of authorized representative;
(c) Address;
(d) Phone number and fax number;
(e) E-mail address;
(d) Web site, if any.
(a) Description of the organizational unit which will lead/oversee the project;
(b) A brief summary statement that articulates the project's concept and states its goals and objectives;
(c) Identification of the funding priority addressed by the project;
(d) A brief summary of the method that will be used to achieve the project goals; and
(e) Summary of the kinds of activities that will be funded by the project.
(a) Indication if you would like to participate in the September 3, 2003, Pre-application Assistance Call if your Letter of Intent is accepted.
Letters of Intent submitted to EPA will be screened for basic eligibility and administrative responsiveness. Only those proposals satisfying all the basic requirements will be invited to submit a Full Proposal; and
(b) Indication of any special needs to permit participation on such a call.
If your Letter of Intent is accepted, you will be invited to participate in Stage 2.
(1) Optional Pre-proposal Assistance Conference Call. An optional Pre-proposal Assistance Conference Call will be held on September 3, 2003, to answer any questions prospective eligible applicants may have. If you indicate in your Letter of Intent a desire to participate in the Pre-proposal Assistance Conference Call
Applicants should periodically check the Web page below for updated information to applicants (
(2) Full Proposal (You must complete both (a) the EPA Application Kit for Federal Assistance and (b) the Work Plan Proposal Narrative as described below).
The EPA Application Kit for Federal Assistance can be obtained on the Web at
In addition to the standard forms contained in the EPA Application Kit for Federal Assistance, you must submit a Work Plan Proposal Narrative of no greater than 10 pages (plus appendices) that follows
(i.)
(ii.)
(aa) Description of the organizational unit that will lead/oversee the project.
(bb) Brief summary statement that articulates the project's concept and states its goals and objectives.
(cc) Identification of the funding priority addressed by the project.
(dd) Brief summary of the method that will be used to achieve the project goals.
(ee) Summary of the kinds of activities that will be funded by the project.
(iii.)
(aa) Who will conduct the project? What experience do the partners have in addressing environmental triggers of childhood asthma? What is the nature of your on-going programs addressing children's environmental health. What will be the roles and responsibilities of each partner? Who will be affected by and/or benefit from your project? How will they be targeted, identified, and recruited?
(bb) Why is it needed?
(cc) What is the purpose of your project? Explain your strategy—your goals and objectives, the specific activities you will conduct to achieve them, and what your projected outcomes will be. How will you evaluate your results and your level of success? Describe any mechanisms for tracking Initiative outputs (
(dd) How will project deliverables and/or findings be presented/packaged to be shared with and replicated by other states?
(ee) All projects should be completed prior to February 1, 2006. Outline a detailed time line/responsibility matrix to link your project activities to a clear project schedule. Indicate at what point over the months of your budget period each action, project outcome or milestone occurs and indicate which partner is responsible for each action.
(iv.)
(aa) Eligible Expenses: salaries/fringe, travel, communications, equipment rental, indirect overhead, public outreach efforts (workshops, public forums, meeting expenses), office expenses, printing and copying (conference and promotional materials), and web site dissemination of information related to the project.
(bb) Ineligible Expenses: capital expenditures, construction expenses, lobbying, endowments, formal educational expenses, entertainment, remediation and removal expenses, medical equipment and supplies, air sampling, and equipment purchases as the sole focus of the assistance agreement.
(v.)
To support the EPA review process, the proposal must contain eight hard copy sets of the following materials in the order listed below:
(1) Completed EPA Application Kit for Federal Assistance and;
(2) Work Plan Proposal Narrative consisting of:
(a) Contact Information Sheet;
(b) Project Summary;
(c) Project Description;
(d) Project Budget; and
(e) Appendices exactly as defined in Section VIII. Requirements of Letters of Intent and Full Proposals.
Please do not submit additional items. Unnecessary materials (cover letters, un-requested forms or binders create extra burden for the reviewers and failure to follow instructions may lower your score.
(1) Reviewers will score each Full Proposal based on how well it:
(a) Demonstrates substantive collaborative partnerships between state environment and health agencies and demonstrates that project organizations and personnel have the skills and experience necessary to ensure success. (25 points)
(b) Demonstrates that project will address a clear and previously unmet need and identifies who will benefit from the project. (15 points)
(c) Establishes reasonable/realistic goals and objectives (including reasonable time frames); Clearly outlines a cogent strategy for achieving, tracking, and demonstrating meaningful results; Outlines how results and the level of project success will be evaluated; and outlines how the project will be sustained beyond the funding cycle. (40 points)
(d) Outlines a clear and cost effective budget for proposed project. (15 points)
(e) Provides a useful mechanism for project results, such as product deliverables and lessons learned, to be shared and applied in other states. (5 points)
(2)
(a) Applicant's proposed work targets disproportionately impacted (with respect to asthma severity or incidence) children.
(b) Applicant's materials are consistent with EPA guidance and recommendations. In particular, applicant outlines educational materials and mitigation methods for second-hand tobacco smoke, house dust mites, cockroaches, molds, and animal dander that are compatible with the guidance contained in EPA's asthma brochure, A Clear Your Home of Asthma Triggers: Your Children will Breathe Easier
(c) Projects focused upon ambient air pollutants and asthma should be consistent with EPA guidance that can be accessed through
(d) Use of education materials reflecting current standards for conducting environmental health or public health education and outreach activities, particularly with respect to motivating behavioral changes in low-literacy, low-income, and disproportionately impacted populations. (This is not relevant for Phase A Planning Projects).
(e) Proposals including extraordinarily compelling examples and other strengths noted by the reviewers who evaluate and compare proposals.
Letters of Intent submitted to EPA will be screened for basic eligibility and administrative responsiveness. Only those proposals satisfying all the basic requirements will be invited to submit a Full Proposal.
Full Proposals submitted (by invitation) to EPA will be evaluated screened again to confirm basic eligibility and administrative responsiveness, especially completeness. Those Full Proposals satisfying administrative requirements will enter the full evaluation phase review process. Full Proposals will be evaluated based upon the quality of their work plans. Reviewers conducting the screening and evaluation will be EPA Headquarters, Regional and Program Office personnel. At the conclusion of the evaluation phase, the reviewers will score Full Proposals based upon the scoring system described in detail above in section VIII of this solicitation.
After individual projects are evaluated and scored by reviewers, as described above, EPA officials from Headquarters and Regions will select a diverse range of finalists from the highest ranking Full Proposals. In making the final selections, EPA will take into account geographic distribution.
Applicants will receive an email notification of receipt of the Letter of Intent not more than 7 business days after receipt by the Agency. Applicants with successful Letters of Intent will be invited on or before August 22, 2003 if they are deemed eligible to participate in the optional Pre-application Conference Call and to submit a Full Proposal. Applicants will receive an email notification of receipt of the Full Proposal within one month of receipt by the Agency. Usually within six months of application, EPA will contact finalists to request additional federal forms and other information as recommended by reviewers. Rejection Letters are usually sent within 6 months after submission of the Full Proposal.
Projects must be performed by the applicant or by a person satisfactory to the applicant and EPA. All proposals must identify any person other than the applicant who will assist in carrying out the project. These individuals are responsible for receiving the grant award agreement from EPA and ensuring that all grant conditions are satisfied. Recipients are responsible for the successful completion of the project.
No pre-award costs should be incurred by the recipient. Grant recipients may begin incurring allowable costs on the start date identified in the EPA grant award agreement. Activities must be completed and funds spent within the time frames specified in the award agreement. EPA grant funds may be used only for the purposes set forth in the grant agreement and must conform to the Federal cost principles contained in OMB Circular A-87; A-122; and A-21, as appropriate. Ineligible costs will be reduced from the final grant award.
Specific financial and other reporting requirements will be identified in the EPA grant award agreement. Grant recipients must submit formal quarterly progress reports, unless otherwise instructed in the award agreement. Also, two copies of the final report and two copies of all work products must be sent to the EPA project officer within 90 days after the expiration of the budget period. This submission will be accepted as the final requirement, unless the EPA project officer notifies you that changes must be made.
(1) Please visit our Web site for information on children's environmental health issues and these grant materials at
(2) We
(3) First time recipients of Federal funds are encouraged to familiarize themselves with the regulations applicable to assistance agreements found in the Code of Federal Regulations (CFR) title 40, part 31 for State and local government entities.
EPA's general assistance regulations at 40 CFR part 31 apply to state governments.
(1) Optional Pre-proposal Assistance Conference Call for eligible applicants based upon EPA review of the Letter of Intent has been scheduled for September 3, 2003. Eligible applicants who indicated in their Letter of Intent a desire to participate on the call will be advised via email of call-in procedures prior to the call.
(2) Dispute Resolution Process: Procedures are in 40 CFR 30.63 and 40 CFR 31.70.
Applicants who need more information about this grant or clarification about specific requirements of this Solicitation Notice, should periodically check the Web page
To ensure fair and open competition, EPA will answer no questions except on the pre-application conference call.
Questions and answers from the September 3, 2003, Pre-application Assistance Call will be posted within a week of the Assistance Call on the OCHP Web page at:
If paper copies of the EPA Application Kit for Federal Assistance are required, contact Bettina B. Fletcher at 202-564-2646.
Full Proposals If Invited By EPA—Due to on-going mail delays in the Washington, DC area, applicants who are invited to submit a Full Proposal are strongly encouraged to send original Full Proposals signed by an authorized representative of their state organization by way of a private shipping company (
If Full Proposals are mailed, send them to:Bettina Fletcher, U.S. EPA, Office of Children's Health Protection, 1200 Pennsylvania Ave, NW., Mail Code 1107A, Room 2512 Ariel Rios North, Washington, DC 20460.
All state organizations who intend to apply should complete this form and return it to EPA via e-mail to
Brief description of your agency and how your agency proposes to collaborate with sister state agency(ies) in this project.
Indicate below whether your agency would like to participate in the September 3, 2003, Pre-application Assistance Call if your letter of intent is found to be eligible.
• Yes, I would like to participate in the September 3, 2003, Pre-application Assistance Call if my Letter of Intent is found by EPA to be eligible.
• No, I decline to participate in the September 3, 2003, Pre-proposal Assistance Call if my Letter of Intent is found by EPA to be acceptable.
• Please describe any type of support (
To help us prepare for the best possible Pre-Application Assistance Call, please submit in advance any questions you have at this time regarding this application process. Additional questions may also be posed on the call.
Environmental Protection Agency (EPA).
Notice.
The EPA Advisory Council on Clean Air Compliance Analysis (Council) is announcing two public teleconferences by its Special Council Panel for the Review of the Third 812 Analysis and its subcommittee, the Air Quality Modeling Subcommittee (AQMS).
July 11, 2003. A public teleconference call meeting for the AQMS will be held from 11 a.m. to 12:30 p.m. (Eastern Time).
July 11, 2003: A public teleconference call meeting for the Special Council Panel will be held from 12:30 p.m. to 2:30 p.m. (Eastern Time).
July 15, 2003: A public teleconference call meeting for the Special Council Panel will be held from 12 p.m. to 2 p.m. (Eastern Time).
Participation in all teleconferences will be by teleconference only. The meeting location for the September 23-24, 2003 meeting for the Special Council Panel will be held in Washington, DC. The meeting location will be announced on the SAB Web site,
Members of the public who wish to obtain the call-in number and access code to participate in any of the teleconference meetings may contact Ms. Sandra Friedman, EPA Science Advisory Board Staff, at telephone/voice mail: (202) 564-2526, via e-mail at:
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, Notice is given that the Advisory
The Council Special Panel will be providing advice on a revised version of the document, “Benefits and Costs of the Clean Air Act 1990-2020; Revised Analytical Plan for EPA's Second Prospective Analysis' currently found at the following Web site, maintained by EPA's Office of Air and Radiation at:
At its public teleconference on July 11, 2003 the AQMS will discuss advice it developed on the Agency's plans to estimate emissions, a topic discussed by the AQMS at a meeting on June 12, 2003, previously announced in the
At its public teleconference on July 11, 2003, the Special Council Panel will discuss the goals of the second prospective study and the scenarios described therein.
At the public teleconference on July 15, 2003, the Special Council Panel will discuss the Agency's plans for estimating direct costs described in the Analytical Plan and receive a report from the AQMS on emissions.
Agendas for the public teleconferences will be made available on the SAB Web site 10 days prior to the meeting.
It is the policy of the EPA Science Advisory Board (SAB) to accept written public comments of any length, and to accommodate oral public comments whenever possible. The EPA SAB expects that public statements presented at its meetings will not be repetitive of previously submitted oral or written statements.
Individuals requiring special accommodation to access these meetings, should contact the DFO at least five business days prior to the meeting so that appropriate arrangements can be made.
Environmental Protection Agency.
Notice of Teleconference Meeting.
The Environmental Protection Agency's Environmental Laboratory Advisory Board (ELAB) will have teleconference meetings on July 16, 2003, at 1 P.M. ET; August 20, 2003 at 1 P.M. ET; September 17, 2003 at 1 P.M. ET; October 15, 2003, at 1 P.M. ET; November 19, 2003, at 1 P.M. ET; and December 17, 2003, at 1 P.M. ET to discuss the ideas and views presented at the previous ELAB meetings, as well as new business. Items to be discussed by ELAB over these coming meetings include: (1) Non-participating laboratories; (2) Consensus Standards White Paper; (3) ECOS Letter; (4) Homeland security discussion in general; (5) method detection limit related issues; (6) NELAC membership issue and benefits; and (7) follow-up on some of ELAB's past recommendations and issues. Written comments on NELAP laboratory accreditation and the NELAC standards are encouraged and should be sent to Ms. Lara P. Autry, DFO, U.S. EPA (E243-05), 4930 Old Page Road, Research Triangle Park, NC 27709, faxed to (919) 541-4261, or e-mailed to
Environmental Protection Agency.
Notice of public meeting.
In accordance with section 10(a)(2) of Public Law 92-423, “The Federal Advisory Committee Act,” notice is hereby given of the forthcoming conference call meeting of the National Drinking Water Advisory Council (Council), established under the Safe Drinking Water Act, as amended (42 U.S.C. 300f
The Council meeting will be held on July 10, 2003, from 10 a.m. to 12 p.m., Eastern Standard Time.
Council members teleconference into Room 2123 of the EPA East Building, which is physically located at 1201 Constitution Avenue, NW., Washington, DC.
Members of the public that would like to attend the meeting, present an oral statement, submit a written statement in advance, or make arrangements to teleconference call into the meeting should contact Brenda Johnson, Designated Federal Officer, National Drinking Water Advisory Council, by July 3, 2003. Ms. Johnson can be reached at (202) 564-3791, by e-mail at
The Council encourages the public's input and will allocate 30 minutes for this purpose. A limited number of additional phone lines may be available for members of the public that are outside of the Washington, DC, metropolitan commuting area and are unable to attend in person. Any additional teleconferencing lines that are available will be reserved on a first-come, first-serve basis by the Designated Federal Officer. To ensure adequate time for public involvement, oral statements will be limited to five minutes, and it is preferred that only one person present the statement on behalf of a group or organization. Any person who wishes to file a written statement can do so before or after a Council meeting. Written statements received prior to the meeting will be distributed to all members of the Council before any final discussion or vote is completed. Any statements received after the meeting will become part of the permanent meeting file and will be forwarded to the Council members for their information. Any person needing special accommodations at this meeting, including wheelchair access, should contact the Designated Federal Officer, at the number or e-mail listed under the
Environmental Protection Agency.
Notice of availability.
The U.S. Environmental Protection Agency (EPA) is announcing the availability of the final
EPA is making the document available July 1, 2003.
The “Assessment Factors Document” is available at the EPA web site at the following web pages:
Greg Schweer, Office of Pollution Prevention and Toxics (7405M), telephone number: (202) 564-8469; fax number: (202) 564-4765 or Halu
The “Assessment Factors Document” was prepared under the auspices of the EPA Science Policy Council (SPC) to describe the assessment factors and considerations generally used by the Agency to evaluate the quality and relevance of scientific and technical information. These general assessment factors are founded in the Agency guidelines, practices and procedures that make up the EPA information and quality systems, including existing program-specific quality assurance policies. As such, the general assessment factors do not constitute new quality-related considerations, nor does this document describe a new process for evaluating information. The “Assessment Factors Document” is intended to raise the awareness of the information-generating public about EPA's ongoing interest in ensuring and enhancing the quality of information available for Agency use. Further, the “Assessment Factors Document” complements the
Consistent with the Agency's approach to the development of the EPA Information Quality Guidelines, this document is the product of an open, collaborative process between EPA and the public. During the development of this document, EPA requested public input in a variety of ways. EPA distributed a draft document for public comment in September 2002 and hosted a public meeting in Washington, DC. In January 2003, EPA commissioned the National Academy of Sciences to host a workshop to discuss key aspects of this document from a scientific and technical perspective. EPA revised this document based on the input received through these public outreach opportunities.
You may access the EPA “Assessment Factors Document” and other information related to this notice electronically at the following web pages:
To obtain a written copy of the “Assessment Factors Document”, you may contact either of the individuals listed under
Environmental Protection Agency (EPA).
Notice of final issuance.
EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are issuing EPA's final NPDES general permit for discharges from large and small construction activities. Hereinafter, the terms “permit” or “construction general permit” or “CGP” will replace “permits.” Today's permit will replace the existing permit covering large construction sites in EPA Regions 1, 2, 3, 7, 8, 9 and 10 that expired on February 17, 2003 and the permit covering large construction sites in EPA Region 6 that expires July 6, 2003. Today's permit covers large construction sites in EPA Region 5. In addition, today's permit incorporates coverage of small construction activity in EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10. State Coastal Zone Management Act (CZMA) certification was not received from Massachusetts in time for that state to be included in this permit. As such, large construction activities in Massachusetts covered under the 1998 permit will continue to be covered under that permit. Today's permit is similar to the 1998 permits and will authorize the discharge of pollutants in storm water runoff associated with construction activities in accordance with the terms and conditions described therein.
The effective date of this permit is July 1, 2003. The permit will expire five years from the effective date.
The administrative record is available for inspection and copying at the Water Docket, located at the EPA Docket Center in the basement of the EPA West Building, Room B-102, at 1301 Constitution Ave., NW., Washington, DC.
For further information on the final permit, the permit's Notice of Intent (NOI) or Notice of Termination (NOT) requirements, visit EPA's website at
1.
2.
3.
For EPA Region 1, contact Thelma Murphy at tel.: (617) 918-1615 or e-mail at
For EPA Region 2, contact Karen O'Brien at tel.: (212) 637-3717 or e-mail at
For EPA Region 3, contact William Toffel at tel.: (215) 814-5706 or
For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-mail at
For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or e-mail at
For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or e-mail at
For EPA Region 8, contact Greg Davis at tel.: (303) 312-6082 or e-mail at
For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or e-mail at
For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or e-mail at
Section 405 of the Water Quality Act of 1987 (WQA) added section 402(p) of the Clean Water Act (CWA), which directed EPA to develop a phased approach to regulate storm water discharges under the NPDES program. EPA published a final regulation on the first phase of this program on November 16, 1990, establishing permit application requirements for “storm water discharges associated with industrial activity.” EPA defined the term “storm water discharge associated with industrial activity” in a comprehensive manner to cover a wide variety of facilities. Construction activities that disturb at least five acres of land and have point source discharges to waters of the U.S. were included in the definition of “industrial activity” pursuant to 40 CFR 122.26(b)(14)(x). Phase II of the storm water program was published in the
In developing the Phase II storm water regulations, EPA conducted an analysis of the potential impacts of the regulation on the National economy and also analyzed impacts on small businesses. These impacts focused on implementation of sediment and erosion control practices or best management practices to reduce pollutants commonly associated with construction storm water discharges. In performing these analyses, EPA considered affected industrial sectors, including the oil and gas industry. Initially, EPA determined that few, if any oil and gas exploration sites would be affected by Phase II and impacts on the accuracy of Phase II rule cost estimates were unlikely to be significant. Therefore, EPA did not include oil and gas exploration sites in the Final Draft of the Economic Analysis of the Phase II Final Rule. Since rule promulgation, EPA has become aware that close to 30,000 oil and gas sites may be affected by the Phase II storm water regulations.
On March 10, 2003 (68 FR 11325), EPA postponed the permit requirement for small oil and gas small construction activity from March 10, 2003, to March 10, 2005. During the two-year postponement, EPA plans to work with states, industry, and other entities to gather and evaluate data on the development and use of appropriate best management practices for the oil and gas industry.
This permit replaces the previous Construction General Permits which were issued for a five-year term by various EPA Regions in February 1998 (63 FR 7858) and July 1998 (63 FR 36490). The organization and numbering of today's CGP has been revised slightly from the 1998 CGP to more clearly present permittee responsibilities. In addition, following is a list of significant changes included in the CGP as compared to the February 1998 CGP. These changes are discussed in more detail in the CGP fact sheet.
1. Change in Permit Areas Covered.
i. Additions.
a. Indian Country within the States of Michigan, Wisconsin, and Minnesota, Louisiana, Oklahoma, New Mexico, and Texas,
b. State of New Mexico,
c. Discharges in the State of Oklahoma that are not under the authority of the Oklahoma Department of Environmental Quality, including activities associated with oil and gas exploration, drilling, operations, and pipelines (includes SIC Groups 13 and 46, and SIC Codes 492 and 5171), and point source discharges associated with agricultural production, services, and silviculture (includes SIC Groups 01, 02, 07, 08, and 09), and
d. Discharges in the State of Texas that are not under the authority of the Texas Commission on Environmental Quality (formerly TNRCC), including activities associated with the exploration, development, or production of oil or gas or geothermal resources, including transportation of crude oil or natural gas by pipeline.
ii. Deletions.
a. State of Maine,
b. Indian Country, including disputed areas, within the State of Maine, and
c. State of Arizona.
2. Permit coverage modified to include small construction activities (those disturbing one to five acres), and to provide waivers for small construction for low rainfall erosivity, total maximum daily loads (TMDLs), and equivalent analyses.
3. Uncontaminated excavation dewatering added as an allowable non-storm water discharge.
4. Restrictions and documentation requirements added for discharges to waters with TMDLs, and procedures included for addressing attainment of water quality standards.
5. State and county Endangered Species Act (ESA) appendix of Federally-listed or proposed species removed.
6. Discharge authorization procedures and NOI submission deadlines altered to accommodate new seven-day ESA reviews of NOIs by U.S. Fish & Wildlife Service and National Marine Fisheries Service, and to account for ongoing projects.
7. Information required on NOI form modified to require:
i. Applicable permit number;
ii. Internal Revenue Service Employer Identification Number;
iii. Methodology for determining latitude and longitude;
iv. Name of Indian reservation or affiliated Tribe;
v. Address of SWPPP location (changed from optional to required);
vi. Whether the discharge is consistent with the assumptions and requirements of applicable EPA approved or established TMDLs; and
vii. The specific permit tracking number of an operator certifying under criterion F.
8. Language added to support the operator's ability to submit NOIs and NOTs using EPA's electronic NOI system when available.
9. Procedure clarified for operator to delineate on the SWPPP areas of the project where no further requirements apply following earth-disturbing activities and stabilization.
10. Requirement to provide an estimate of the site's runoff coefficient for pre- and post-construction conditions removed.
11. Documentation requirements for ESA eligibility clarified.
12. Inspection provisions modified to include option for weekly site inspections rather than biweekly inspections with follow-up inspections after each rain event, and guidelines included for utility line installation, pipeline construction, and other linear construction activities.
13. Further clarification provided concerning stabilization requirements for project areas where construction has temporarily ceased.
14. Additional guidance and options provided for adjusting SWPPP to address applicable water quality standards after authorization.
15. Clarification added that coverage under an alternative NPDES permit qualifies as a basis for submitting an NOT.
16. Definitions added for the following terms:
i. “Arid Areas”;
ii. “Eligible”;
iii. “Federal Facility”;
iv. “Indian Country”;
v. “Large Construction Activity”;
vi. “New Project”;
vii. “Ongoing Project”;
viii. “Permitting Authority”;
ix. “Project Area”;
x. “Receiving Water”;
xi. “Semi-Arid Areas”;
xii. “Site”;
xiii. “Small Construction Activity”;
xiv. “Storm Water Discharge-Related Activity”;
xv. “Total Maximum Daily Load” or “TMDL”; and
xvi. “Wetland”.
17. Standard conditions revised consistent with 40 CFR 122.41.
Operators of large and small construction activities within the areas listed below may be eligible to obtain coverage under this permit for allowable storm water and non-storm water discharges:
The final general permit includes a number of eligibility restrictions including: post-construction discharges; discharges which may adversely affect endangered or threatened species and critical habitat; discharges which may cause or contribute to excursions above any applicable water quality standards; and discharges that are inconsistent with applicable approved TMDLs. Construction operators that do not meet the eligibility requirements of the general permit will be required to submit an individual permit application or seek coverage under any alternate general permit, if available. Eligibility restrictions for discharges that adversely affect historic properties have been reserved pending ongoing discussions with the Advisory Council on Historic Preservation, State Historic Preservation Officers, and Tribal Historic Preservation Officers. EPA may modify the permit at a later date based on those discussions.
To obtain discharge authorization under the final general permit, dischargers are required to submit an NOI requesting discharge authorization. The NOI must include basic information about the construction project (
i. New Projects: The NOI must be submitted at least seven days prior to commencement of construction activities.
ii. Permitted Ongoing Projects: If the operator previously received authorization to discharge for an ongoing project under the 1998 CGP, the NOI must be submitted within 90 days of the effective date of this permit, unless the permittee is eligible to submit a Notice of Termination (NOT) before the 90th day, provided that the NOT is submitted in compliance with the permit requirements. Until authorized under this permit, the operator must comply with the terms and conditions of the 1998 CGP.
iii. Unpermitted Ongoing Projects: Due to the lack of availability of this permit by the March 10, 2003 deadline for small construction activities to apply for permit coverage and by the February 17, 2003 expiration of the 1998 CGP for large construction activities, EPA anticipates that a number of otherwise regulated construction projects were left without the ability to obtain coverage under a valid general permit. EPA's Office of Enforcement and Compliance Assurance issued a memorandum on March 7, 2003 making administrative or civil enforcement for these activities a low priority because a new CGP had not been promulgated, on the condition that affected operators implement an interim SWPPP and associated best management practices until the new permit is available. For this class of operators, which did not previously receive authorization to discharge for an ongoing project under the 1998 CGP, the NOI must be submitted within 90 days of the effective date of this permit, unless the permittee is eligible to submit a Notice of Termination (NOT) before the 90th day. Until authorized under this permit, the operator must comply with an interim SWPPP consistent with the 1998 CGP.
The final general permit requires that all operators covered by the permit develop and implement a SWPPP. The SWPPP is the principal means through which dischargers comply with the CWA's requirement to control pollutants in their discharges. All SWPPPs are required to be developed in accordance with sound engineering practices and developed specific to the site. These SWPPPs are required to be prepared prior to commencement of construction activities and then updated as appropriate. Specific elements to be addressed in the SWPPP include:
i. Pollution Prevention Plan Contents: Site and Activity Description,
ii. Pollution Prevention Plan Contents: Controls to Reduce Pollutants,
iii. Non Storm Water Discharge Management,
iv. Maintenance of Controls,
v. Documentation of Permit Eligibility Related to Endangered Species,
vi. Copy of Permit Requirements,
vii. Applicable State, Tribal, or Local Programs,
viii. Inspections,
ix. Maintaining an Updated Plan,
x. Signature, Plan Review and Making Plans Available,
xi. Management Practices, and
xii. Documentation of Permit Eligibility Related to Total Maximum Daily Loads.
Within 120 days following notice of EPA's final decision for the general permit under 40 CFR 124.15, any interested person may appeal the permit in the Federal Court of Appeals in accordance with Section 509(b)(1) of the CWA. Persons affected by a general permit may not challenge the conditions of a general permit as a right in further Agency proceedings. They may instead either challenge the general permit in court, or apply for an individual permit as specified at 40 CFR 122.21 (and authorized at 40 CFR 122.28), and then petition the Environmental Appeals Board to review any conditions of the individual permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 30886).
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has exempted review of NPDES general permits under the terms of Executive Order 12866.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rule-making requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
Issuance of an NPDES general permit is not subject to rulemaking requirements, under APA section 553 or any other law, and is thus not subject to the RFA requirements. The APA defines two broad, mutually exclusive categories of agency action—“rules” and “orders.” Its definition of “rule” encompasses “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency * * *” APA section 551(4). Its definition of “order” is residual: “a final disposition * * * of an agency in a matter other than rule making but including licensing.” APA section 551(6) (emphasis added). The APA defines “license” to “include * * * an agency permit * * *” APA section 551(8). The APA thus categorizes a permit as an order, which by the APA's definition is not a rule. Section 553 of the APA establishes “rule making” requirements. The APA defines “rule making” as “the agency process for formulating, amending, or repealing a rule.” APA section 551(5). By its terms, then, section 553 applies only to “rules” and not also to “orders,” which include permits.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their “regulatory actions” on State, local, and tribal governments and the private sector. UMRA uses the term “regulatory actions” to refer to regulations. (
EPA has reviewed the requirements imposed on regulated facilities resulting from the final construction general permit under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501
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Notice of a partially open meeting of the Board of Directors of the Export-Import Bank of the United States.
Thursday, July 3, 2003 at 9:30 a.m. The meeting will be held at Ex-Im Bank in Room 1143, 811 Vermont Avenue, NW., Washington, DC 20571.
Transportation Security Export Program.
The meeting will be open to public participation for Item No. 1 only.
For further information, contact: Office of the Secretary, 811 Vermont Avenue, NW., Washington, DC 20571 (Telephone No. 202-565-3957).
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 Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 25, 2003.
Board of Governors of the Federal Reserve System, June 25, 2003.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 15, 2003.
Board of Governors of the Federal Reserve System, June 25, 2003.
General Services Administration.
Final notice of a revision to a Privacy Act system of records.
The General Services Administration (GSA) is publishing a final notice of a revision to the government-wide system of records, Contracted Travel Services Program (GSA/GOVT-4). This final notice incorporates changes based on a comment in response to a notice originally published for public comment on May 2, 2003, proposing to revise the system to include a contracted government-wide electronic travel service (eTS) that would require a new category of travel service provider for maintaining information in a comprehensive travel services system for travelers on official Federal business, from initial travel authorization to the final accounting. The one comment received by GSA expressed concern that the “categories of individuals covered by the system” category included others besides the individuals who travel at government expense and that this would allow retrievability of records by the names of third parties. This final notice addresses that concern by limiting the categories of individuals covered by the system to individuals on official travel for the Federal government.
GSA Privacy Act Officer, General Services Administration, Office of the Chief People Officer, 1800 F Street NW., Washington DC 20405; telephone (202) 501-1452.
Contracted Travel Services Program.
System records are located at the service providers under contract with a Federal agency and at the Federal agencies using the contracts.
Individuals covered by the system are Federal employees authorized to perform official travel, and individuals being provided travel by the Federal government.
System records include a traveler's profile containing: name of individual; Social Security Number; employee identification number; home and office telephones; home address; home and office e-mail addresses; emergency contact name and telephone number; agency name, address, and telephone number; air travel preference; rental car identification number and car preference; hotel preference; current passport and/or visa number(s); credit card numbers and related information; bank account information needed for electronic funds transfer; frequent traveler account information (
31 U.S.C. 3511, 3512, and 3523; 5 U.S.C. Chapter 57; and implementing Federal Travel Regulations (41 CFR parts 301-304).
To establish a comprehensive beginning-to-end travel services system containing information to enable travel service providers under contract to the Federal government to authorize, issue, and account for travel and travel reimbursements provided to individuals on official Federal government business.
Information in the system may be disclosed as a routine use as follows:
a. To a Federal, State, local, or foreign agency responsible for investigating, prosecuting, enforcing, or carrying out a statute, rule, regulation, or order, where agencies become aware of a violation or potential violation of civil or criminal law or regulation.
b. To another Federal agency or a court when the Federal government is party to a judicial proceeding.
c. To a Member of Congress or a congressional staff member in response to an inquiry from that congressional office made at the request of the individual who is the subject of the record.
d. To a Federal agency employee, expert, consultant, or contractor in performing a Federal duty for purposes of authorizing, arranging, and/or claiming reimbursement for official travel, including, but not limited to, traveler profile information.
e. To a credit card company for billing purposes, including collection of past due amounts.
f. To a Federal agency for accumulating reporting data and monitoring the system.
g. To a Federal agency by the contractor in the form of itemized statements or invoices, and reports of all transactions, including refunds and adjustments to enable audits of charges to the Federal government.
h. To a Federal agency, in response to its request, in connection with the hiring or retention of any employee to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
i. To an authorized appeal or grievance examiner, formal complaints examiner, equal employment opportunity investigator, arbitrator, or other duly authorized official engaged in investigation or settlement of a grievance, complaint, or appeal filed by
j. To the Office of Personnel Management (OPM) in accordance with the agency's responsibility for evaluation of Federal personnel management.
k. To officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
l. To a travel services provider for billing and refund purposes.
m. To a carrier or an insurer for settlement of an employee claim for loss of or damage to personal property incident to service under 31 U.S.C. § 3721, or to a party involved in a tort claim against the Federal government resulting from an accident involving a traveler.
n. To a credit reporting agency or credit bureau, as allowed and authorized by law, for the purpose of adding to a credit history file when it has been determined that an individual's account with a creditor with input to the system is delinquent.
Paper records are stored in file cabinets. Electronic records are maintained within a computer (
Paper records are filed by a traveler's name and/or Social Security Number/employee identification number at each location. Electronic records are retrievable by any attribute of the system.
Paper records are stored in lockable file cabinets or secured rooms. Electronic records are protected by a password system and a secure socket layer encrypted Internet connection. Information is released only to authorized users and officials on a need-to-know basis.
Records kept by a Federal agency are maintained in accordance with the General Records Retention Schedules issued by the National Archives and Records Administration (NARA).
Assistant Commissioner, Office of Transportation and Property Management (FB), Federal Supply Service, General Services Administration, Crystal Mall Building 4, 1941 Jefferson Davis Highway, Arlington VA 22202.
Inquiries from individuals should be addressed to the appropriate administrative office for the agency that is authorizing and/or reimbursing their travel.
Requests from individuals should be addressed to the appropriate administrative office for the agency that is authorizing and/or reimbursing their travel. Individuals must furnish their full name and/or Social Security Number to the authorizing agency for their records to be located and identified.
Individuals wishing to request amendment of their records should contact the appropriate administrative office for the agency that authorized and/or reimbursed their travel. Individuals must furnish their full name and/or Social Security Number along with the name of the authorizing agency, including duty station where they were employed at the time travel was performed.
The sources are the individuals themselves, employees, travel authorizations, credit card companies, and travel service providers.
Application Deadline: July 31, 2003.
This program is authorized under section 301 and 317(k) of the Public Health Service Act, (42 U.S.C. section 241 and 247b(k)), as amended. The Catalog of Federal Domestic Assistance number is 93.941.
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2003 funds for a cooperative agreement program for the Technology Translation and Transfer of Effective HIV Prevention Behavioral Interventions. This program addresses the “Healthy People 2010” focus area of HIV.
The purpose of the program is to: (1) Support translation of the protocols for effective HIV prevention interventions, in which the original research was conducted with methodological rigor and which have not been packaged or widely adopted, into a package of materials that state, local, and non-profit prevention providers can use to implement the interventions in their non-research field situations; and (2) Support development of curricula for training provider agency staff who will implement the intervention on how to deliver the packaged intervention with fidelity and on technical skills needed to conduct the intervention, and technical assistance guidance manuals for providing technical assistance to future adopters of the intervention.
Measurable outcomes of the program will be in alignment with one or more of the following performance goals for the National Center for HIV, STD, and TB Prevention (NCHSTP): Strengthen the capacity nationwide to monitor the epidemic, develop and implement effective HIV prevention interventions and evaluate prevention programs and to also decrease the number of persons at high risk for acquiring or transmitting HIV infection.
Applications may be submitted by non-profits organizations and by governments and their agencies in the United States; that is: public nonprofit organizations; private nonprofit organizations; for profit organizations; universities; colleges; research institutions; hospitals; community-based organizations; state and local governments or their bona fide agents (this includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Marianna Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau); political subdivisions of States (in consultation with States); small, minority, women owned businesses; technical schools; faith-based organizations; and federally recognized Indian tribal governments. If any of the aforementioned organizations,
Title 2 of the United States Code section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant or loan.
Approximately $470,000 is available in FY 2003 to fund approximately two awards. It is expected that the average award will be $215,000, ranging from $200,000 to $235,000. It is expected that the awards will begin on or about September 15, 2003, and will be made for a 12-month budget period within a project period of up to two years. Funding estimates may change.
Continuation awards within an approved project period will be made on the basis of satisfactory progress, as evidenced by required reports and the availability of funds. Continued funding for year two will be dependent on the completion of required activities for year one.
Collection of new or supplemental intervention research outcomes data, data entry and analysis, other than for process evaluation of this project, purchase of furniture or computers, and rental of facilities will not be funded under this program.
Matching funds are not required for this program.
CDC's intention is to support the packaging of interventions for target populations not currently represented in the Replicating Effective Programs collection of packages. This announcement is only for proposals that submit an HIV prevention intervention with demonstrated effectiveness in changing HIV/STD-related risk behavior or health outcomes. Consideration will be given to obtaining diversity of at-risk populations among the proposals selected for funding. Interventions are sought for any population at risk of acquiring or transmitting HIV; however, the following populations are of particular interest: (1) Persons with HIV infection; (2) African American men having sex with men (MSM); (3) Hispanic MSM; (4) incarcerated persons; (5) sex workers, (6) transgender persons; and (7) persons living in rural areas whose behaviors put them at risk for HIV infection.
In conducting activities to achieve the purpose of this program, the recipient will be responsible for the activities listed in 1. Recipient Activities, and CDC will be responsible for the activities listed in 2. CDC Activities.
The program requirements for the first year of activity include:
a. Develop the intervention package, including promotional or marketing material for program administrators, and preliminary versions of the training curricula in collaboration with HIV prevention providers and consumers.
b. Produce enough intervention packages so that each case study agency can receive one for each staff member delivering the intervention, the researcher's team has at least one package; and the CDC Project Officer has one package. The number of packages will depend upon the structure of the intervention, how many case study agencies test the package, and how many facilitators there are at each agency.
c. Identify at least two HIV prevention agencies, which are not collaborating on package development, for case study of the technology transfer process.
d. Develop a plan to evaluate the implementation process.
Program requirements for the second year of activity include:
a. Initiate the prevention agency case study using the intervention package, training curricula, quality assurance, and technical assistance.
b. Complete the case study by achieving technology transfer with at least one of the selected agencies.
c. Initiate and complete the implementation process evaluation.
d. Revise intervention and training materials based upon the case study results.
e. Develop technical assistance guidance manuals based on transfer experience.
f. Publish and distribute results.
a. Host a meeting with the successful applicants within 60 days of the notice of award to discuss implementation of the project. CDC will host two meetings per project year to facilitate the sharing of experiences and lessons learned by the recipients of this funding and the recipients of Replicating Effective Programs (REP) funding under other announcements.
b. Provide technical assistance in the general operation of this HIV prevention project, including but not limited to detailed advice on steps to accomplish the recipient activities, composition of community advisory boards, cost containment strategies for video production, package production issues (
c. Consult on the choice of prevention agencies for the case studies with the intervention package by suggesting selection criteria, assisting in identifying potential agencies in the event that a recipient has difficulty, and approving the final choices.
d. Monitor and evaluate scientific and operational accomplishments of this project through frequent telephone contact and review of technical reports, package iterations, and interim data analyses. Project Officers will conduct monthly calls with individual recipients and monthly conference calls with all current recipients of REP funding, will read and edit iterations of the package and video scripts, and will make recommendations aimed at solving problems and improving the quality and timeliness of recipient activities.
e. Conduct at least one site visit per year to assess program progress and mutually solve problems, and additional visits as needed.
The Program Announcement title and number must appear in the application. Use the information in the Program Requirements, Other Requirements, and Evaluation Criteria sections to develop the application content. Your application will be evaluated on the criteria listed, so it is important to follow them in laying out your program
The narrative should consist of a one-page abstract of the proposal, a complete table of contents to the application and its appendices, and text addressing each required element. Beginning with the first page of text, number all pages clearly and sequentially, including each page in the appendices. Replace double-sided article reprints with a one-sided copy.
Include a general introduction, followed by one narrative subsection for each of the numbered content elements per application, in the order in which the elements appear below. Label each narrative subsection with the element title and include all of the information needed to evaluate that element of the application (except for curriculum vitae, references, line item budget justification, and letters of support, which are appropriate for the appendices). The application's narrative content elements are:
a. Demonstrate capacity to conduct the activities required for this project.
b. Clearly describe the proposed staffing,
c. Demonstrate that the applicant's staff has the expertise to complete this project, including ability to produce the intervention package,
d. Name the staff members who are key to the completion of the project. Provide a brief description of their strengths that relate to this project. Include their curriculum vitae in the appendix.
e. Describe access to graphics expertise for the editing and production of the intervention package in print and/or electronic formats.
f. Briefly describe compliance regarding the inclusion of women, ethnic, and racial groups in the proposed activities or justification when representation is limited or absent.
a. Identify the principal investigator (PI); name and location of the institution(s) that originally developed, conducted, and evaluated the proposed intervention; and population(s) for whom the intervention was designed. Indicate whether the research was part of a multi-site project.
b. If the research was part of a multi-site project with a common protocol, provide letters of support from original developers of the intervention other than the applicant (
c. Where the applicant is not an original developer of the intervention, provide written permission from the intervention's original developers to develop and market materials for the intervention package.
d. Describe the research's results on behavioral or health outcomes, including how these results are both statistically and practically significant; and, if the intervention is community-level, how long the intervention was in operation before positive effects were detected.
e. Include in the appendix a copy of any reports, which have been submitted to the institution funding the research, have been submitted for publication, or have been published in peer reviewed journals, describing the study design and positive behavioral or health outcomes of the intervention. This portion of the appendix should be labeled as “Intervention Study Design and Results.”
f. Substantiate the need for an intervention package in terms of the target population's risk and the intervention's potential for being generalized to other populations at risk for HIV infection.
g. Describe the feasibility of implementation by HIV prevention agencies, particularly those with limited resources, and the number of at-risk persons an agency could potentially reach with the intervention annually.
a. Describe the contents of the intervention package that will be developed. Include descriptions of: (1) The overall concept, format, and objectives to be in text and in short promotional or marketing materials for program administrators,
b. Explain how staff from HIV prevention programs (
c. Present a time line for developing and reviewing the intervention package and its components.
a. Discuss a plan to identify and recruit potential implementers within your state or nearby (
b. Elaborate on the criteria and mechanism for selecting agencies that will participate in case studies of implementing the packaged intervention.
Any agency that participated in the intervention's original research is excluded from consideration as a potential implementer, as is any agency that currently or previously implemented the intervention.
a. Describe the strategy to facilitate implementation of the packaged intervention, including development of training curricula, provision of training, and provision of direct technical assistance from the applicant to the
b. Discuss procedures to assist selected agencies to implement the packaged intervention, drawing upon the agencies' existing staff and resources, and to identify barriers to implementation and how to overcome them.
a. Describe methods and measures to be used in assessing: (1) Fidelity to the intervention's core elements during the implementation phases as specified in the intervention package; (2) quality of intervention delivery according to the methods described in the package; (3) quality of the applicant's technical assistance and its delivery; (4) impact of barriers to implementation on the case study (
b. Describe plan to use the process evaluation results in finalizing the intervention package and the training curricula for agency staff and for the preparation of guidance manuals for future technical assistance providers.
The purpose of the program includes achieving technology transfer with at least one HIV prevention agency and studying the process. Selection of two or more implementing agencies may increase the likelihood of achieving technology transfer (
Provide a detailed, line-item budget for the project; justify each line item. Plan for two trips to Atlanta each year to meet with CDC representatives. Any application requesting greater than $235,000 (including indirect costs) will not be considered for review and will be returned to the applicant.
Describe how the measurable outcomes of the program will be in alignment with one or more of the following performance goals:
a. Strengthen the capacity nationwide to monitor the epidemic, develop and implement effective HIV prevention interventions and evaluate prevention programs.
b. Decrease the number of persons at high risk for acquiring or transmitting HIV infection.
Submit the signed original and two copies of PHS 5161-1 (OMB number 0920-0428). Forms are available at the following Internet address:
If you do not have access to the Internet, or if you have difficulty accessing the forms on-line, you may contact the CDC Procurement and Grants Office Technical Information Management Section (PGO-TIM) at: 770-488-2700. Application forms can be mailed to you.
The application must be received by 4 p.m. Eastern Time July 31, 2003. Submit the application to: Technical Information Management-PA# 03090, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341-4146.
Applications may not be submitted electronically.
A postcard will be mailed by PGO-TIM, notifying you that CDC has received your application.
Applications shall be considered as meeting the deadline if they are received before 4 p.m. Eastern Time on the deadline date. Any applicant who sends their application by the United States Postal Service or commercial delivery services must ensure that the carrier will be able to guarantee delivery of the application by the closing date and time. If an application is received after closing due to (1) carrier error, when the carrier accepted the package with a guarantee for delivery by the closing date and time, or (2) significant weather delays or natural disasters, CDC will, upon receipt of proper documentation, consider the application as having been received by the deadline.
Any application that does not meet the above criteria will not be eligible for competition, and will be discarded. The applicant will be notified of their failure to meet the submission requirements.
Applicants are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the cooperative agreement. Measures of effectiveness must relate to the performance goals stated in the purpose section of this announcement. Measures must be objective and quantitative and must measure the intended outcome. These measures of effectiveness must be submitted with the application and will be an element of evaluation.
An independent review group appointed by CDC will evaluate each application against the following criteria:
1. Demonstrated Capacity and the degree to which the applicant has met the CDC Policy requirements regarding the inclusion of women, ethnic, and racial groups in the proposed research (25 points) a. Demonstrated Capacity. Overall ability of the applicant to perform the proposed activities as reflected in their staff's and consultants' qualifications and availability. The extent to which the applicant demonstrates that proposed staff have experience with developing materials in various formats, training, and process evaluation and have demonstrated familiarity with HIV behavioral interventions, particularly the intervention to be packaged. The nature of any partnership between researchers and HIV prevention programs. Adequacy of existing support staff, equipment, and facilities.
b. The degree to which the applicant has met the CDC Policy requirements regarding the inclusion of women, ethnic, and racial groups in the proposed research. This includes: (1) The proposed plan for the inclusion of both sexes and racial and ethnic minority populations for appropriate representation; (2) The proposed justification when representation is limited or absent; (3) A statement as to whether the design of the study is adequate to measure differences when warranted; (4) A statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with community(ies) and recognition of mutual benefits.
2. Effective Behavioral Intervention (20 points). Clear demonstration of the effectiveness of the proposed intervention in a report that has been: (1) Submitted to the institution funding the research; (2) submitted for publication, or published in a peer-reviewed journal. This is an absolute criterion.
To be considered effective, the intervention must have: (1) Tested using a control or comparison group with participants assigned randomly or without bias to study conditions; (2) measured using pre- and post-
a. The original research for this intervention was conducted and completed with a population at demonstrable risk for acquiring or transmitting HIV, preferably persons with HIV infection, African American men having sex with men (MSM), Hispanic MSM, incarcerated persons, sex workers, transgender persons, or persons living in rural areas whose behaviors put them at risk for HIV infection.
b. The feasibility of implementing the proposed intervention by agencies with limited resources and the number of at-risk persons an agency could reach.
c. Letters of permission from the intervention's developer(s) to develop and market materials for the proposed intervention package and, if the intervention was from a multi-site project with a common protocol, letters of participation from the same developers.
3. Plan for Intervention Package Development (15 points). Level of detail in the outline of the proposed package,
4. Plan to Identify Prevention Agencies to Implement the Packaged Intervention (15 points). Recognition of which agencies are not eligible to participate in the implementation case study. Quality of plan to identify eligible potential agencies with at-risk populations for whom the intervention is appropriate and to interest them in implementing the package during year two of the project. Selection of active methods to identify and solicit potential implementing agencies. Adequacy of criteria and mechanism for selecting at least two implementing agencies likely to achieve technology transfer.
5. Methods to Assist Implementation (15 points). Clarity of the strategy to assist selected agencies in adopting and implementing the proposed intervention,
6. Evaluation of Implementation Process (10 points). Feasibility and appropriateness of the applicant's plan to evaluate the selected agencies' implementation of the intervention as specified in the intervention package. Thorough and realistic selection of process measures to evaluate. Adequacy of plans for revising intervention package and training materials based upon the case study results. Adequacy of plans for developing a technical assistance manual based on the agencies' and applicant's implementation and transfer experiences.
7. Budget (Reviewed, but not scored). Extent to which the budget is reasonable, itemized, clearly justified, and consistent with the intended use of the funds. Extent to which the budget includes itemizations, justifications, scope, and deliverables for consultants or contractors.
8. Performance goals (Reviewed, but not scored). Extent to which the program's proposed measures will demonstrate effective accomplishment of the purposes and one or more performance goals of the cooperative agreement.
Does the application adequately address the requirements of Title 45 CFR Part 46 for the protection of human subjects? Not scored; however, an application can be disapproved if the research risks are sufficiently serious and protection against risks is so inadequate as to make the entire application unacceptable.
Provide CDC with an original, plus two copies of:
1. Interim progress report, no less than 90 days before the end of the budget period. The progress report will serve as your non-competing continuation application, and must contain the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period Program Proposed Activity Objectives.
d. Detailed Line-Item Budget and Justification.
e. Additional Requested Information.
2. Financial status report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
At the completion of two years of funding, recipients will be expected to share print, and possibly electronic, copies of the revised intervention packages with representatives of the agencies that implemented the intervention for the program's case studies, with CDC project officers, and with the intervention's developers, if different from the applicant.
The following additional requirements are applicable to this program. For a complete description of each, see Attachment I of the program announcement, as posted on the CDC web site.
This and other CDC announcements, the necessary applications, and associated forms can be found on the CDC web site, Internet address:
For general questions about this announcement, contact: Technical
For business management and budget assistance, contact: Vincent Falzone, Grants Management Specialist, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Road, Atlanta, GA 30341-4146, Telephone: 770-488-2700.
For program technical assistance, contact: Craig Studer, Deputy Branch Chief, Division of HIV/AIDS Prevention, National Center for HIV/STD/TB Prevention, Centers for Disease Control and Prevention, 1600 Clifton Road, NE, Mailstop E-37, Atlanta, GA 30333, Telephone: 404-639-5389, E-mail address:
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) announces that applications will be accepted for the Nurse Faculty Loan Program for Fiscal Year 2003.
Upon completion by the individual of each of the first, second, and third year of full-time employment as a faculty member in a school of nursing, the
Denise Thompson, Division of Nursing, Bureau of Health Professions, HRSA, Room 9-36, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857. Telephone number: (301) 443-6333. Fax number: (301) 443-0791. E-mail:
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., 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 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 personnel information concerning individuals associated with the grant applications, this 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 if 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.
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.
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.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, June 30, 2003, 8 a.m. to July 1, 2003, 5 p.m. Holiday Inn Select Bethesda, 8120 Wisconsin Ave., Bethesda, MD, 20814 which was published in the
The ending time of the meeting has been changed to 3 p.m. on July 1, 2003. The meeting dates and location remain the same. The meeting is closed to the public.
Purusant 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 552(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.
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.
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.
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.
The NTP Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM) announces the availability of and invites public comment on proposed MPS for three types of
Copies of the MPS are available electronically in PDF format on the ICCVAM/NICEATM web site at
NICEATM invites the submission of written comments on the proposed MPS. When submitting written comments, please refer to this
ICCVAM previously evaluated and recommended four validated test methods for assessing the dermal corrosivity hazard potential of chemicals: Corrositex®, EPISKIN
The purpose of the MPS is to communicate the basis on which a validated and accepted proprietary (
The three elements of MPS are:
• Minimum procedural standards that identify essential structural, functional, and procedural components of the validated reference test method (
• A list of recommended reference chemicals that can be used to assess the accuracy and reliability characteristics of the proposed test method. The list includes substances that are representative of the chemical and product classes for which the validated test method is considered applicable, as well as substances that are representative of the range of responses (
• The accuracy and reliability that should be achieved by the proposed test method when evaluated using the minimum list of reference chemicals.
The NIEHS established the ICCVAM in 1997 to coordinate the interagency technical review of new, revised, and alternative test methods of interagency interest, and to coordinate cross-agency issues relating to the validation, acceptance, and national/international harmonization of toxicological testing methods. ICCVAM was established as a permanent interagency committee of the NIEHS under the NICEATM on December 19, 2000, by the ICCVAM Authorization Act of 2000 (Pub. L. 106-545, available at
NIEHS. 1999. Corrositex® An
NIEHS. 2002. ICCVAM Evaluation of EPISKIN
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the laboratories currently certified to meet the standards of Subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) published in the
If any laboratory has withdrawn from HHS' National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end, and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh or Dr. Walter Vogl, Division of Workplace Programs, 5600 Fishers Lane, Rockwall 2, Room 815, Rockville, Maryland 20857; 301-443-6014 (voice), 301-443-3031 (fax).
The Mandatory Guidelines were developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71. Subpart C of the Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards that laboratories must meet in order to conduct urine drug testing for Federal agencies. To become certified, an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection.
To maintain that certification, a laboratory must participate in a quarterly performance testing program plus periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements expressed in the HHS Mandatory Guidelines. A laboratory must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with Subpart C of the Mandatory Guidelines, the following laboratories meet the minimum standards set forth in the Mandatory Guidelines:
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Bureau of Citizenship and Immigration Services, Homeland Security.
Notice.
The designation of Montserrat under the Temporary Protected Status (TPS) Program will expire August 27, 2003. This notice extends the designation of Montserrat for 12 months until August 27, 2004, and sets forth procedures necessary for nationals of Montserrat (or aliens having no nationality who last habitually resided in Montserrat) with TPS to re-register and to apply for an extension of their employment authorization documentation for the additional 12-month period. Re-registration is limited to persons who registered under the initial designation, which ended on August 27, 1998, and also timely re-registered under the extensions of designation. Certain nationals of Montserrat (or aliens having no nationality who last habitually resided in Montserrat) who previously have not applied for TPS may be eligible to apply under the late initial registration provisions.
The extension of Montserrat's TPS designation is
Jonathan Mills, Department of Homeland Security, Bureau of Citizenship and Immigration Services, 425 “I” Street, NW., Room 3040, Washington, DC 20536, telephone (202) 514-4754.
On March 1, 2003, the functions of the Immigration and Naturalization Service (Service) transferred from the Department of Justice to the Department of Homeland Security (DHS) pursuant to the Homeland Security Act of 2002, Public Law 107-296. The responsibilities held by the Service for administering the TPS program were transferred to the Bureau of Citizenship and Immigration Services (BCIS).
Under section 244 of the Immigration and Nationality Act (the Act), 8 U.S.C. 1254a, the Secretary of DHS, after consultation with appropriate agencies of the Government, is authorized to designate a foreign state or (part thereof) for TPS. The Secretary of DHS may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state).
Section 244(b)(3)(A) of the Act requires the Secretary of DHS to review, at least 60 days before the end of the TPS designation or any extension thereof, the conditions in a foreign state designated under the TPS program to determine whether the conditions for a TPS designation continue to be met and, if so, the length of an extension of TPS. (8 U.S.C. 1254a(b)(3)(A)). If the Secretary of DHS determines that the foreign state no longer meets the conditions for TPS designation, he shall terminate the designation, as provided in section 244(b)(3)(B) of the Act (8 U.S.C. 1254a(b)(3)(B)). Finally, if the Secretary of DHS does not make the required determination prior to the 60-day period prescribed by statute, section 244(b)(3)(C) of the Act provides for an automatic extension of TPS for an additional period of 6 months (or, in the discretion of the Secretary of DHS, a period of 12 or 18 months) (8 U.S.C. 1254a(b)(3)(C)).
On August 28, 1997, the Attorney General designated Montserrat under the TPS program for a period of 12 months due to volcanic eruptions that affected the entire island and its residents. 62 FR 45685. The Attorney General extended Montserrat's TPS designation five times, determining each time that the conditions warranting such designation continued to be met.
Since the date of the last extension, the Departments of Homeland Security and State have continued to review conditions in Montserrat. A 12-month extension is warranted due to the threat of further volcanic activity, serious health risks from hazardous ash, and lack of infrastructure, including no functioning airport.
Citing recommendations made by the September 2002 Montserrat Volcano Risk Assessment Panel and a late December 2002 appraisal of the situation, the Department of State reports that persons who were evacuated from their homes because of volcanic eruptions that occurred in 1997 are still unable to safely return. DOS Recommendation for the Extension of TPS (May 9, 2003). The amount of magma in the volcano continues to grow, as does its lava dome. Id. Volcanic threats to many areas surrounding the volcano have increased since the most recent Hazard and Risk Assessment, which occurred in October 2002. Id. As a result, the government of Montserrat expanded the “exclusion zone” of the island. BCIS Resource Information Center (May 5, 2003). The southern two-thirds of the island is buried in volcanic material and uninhabitable.
The Department of State further notes that emergency measures remain in place in Montserrat. DOS Recommendation for Extension of TPS. A lack of infrastructure, including no functioning airport, continues to exist.
Based upon this review, the Secretary of DHS, after consultation with appropriate Government agencies, finds that the conditions that prompted designation of Montserrat under the TPS program continue to be met (8 U.S.C.1254a(b)(3)(C)). There continues to be a substantial, but temporary, disruption of living conditions in Montserrat as the result of an environmental disaster, and Montserrat continues to be unable, temporarily, to handle adequately the return of its nationals (8 U.S.C. 1254a(b)(1)(B)(i)-(ii)). On the basis of these findings, the Secretary of DHS concludes that the TPS designation for Montserrat should be extended for an additional 12-month period.
Yes. If you already have received TPS benefits through the Montserrat TPS program, your benefits will expire on August 27, 2003. Accordingly, individual TPS beneficiaries must comply with the re-registration requirements described below in order to maintain their TPS benefits through August 27, 2004. TPS benefits include temporary protection against removal from the United States, as well as work authorization, during the TPS designation period and any extension thereof (8 U.S.C. 1254a(a)(1)).
All persons previously granted TPS under the Montserrat program who wish to maintain such status must apply for an extension by filing (1) a Form I-821, Application for Temporary Protected Status, without the filing fee; (2) a Form I-765, Application for Employment Authorization; and (3) two identification photographs (1
Submit the completed forms and applicable fee, if any, to the BCIS district office having jurisdiction over your place of residence during the 60-day re-registration period that begins
An application for TPS does not affect an application for asylum or any other immigration benefit, and vise versa. Denial of an application for asylum or any other immigration benefit does not affect an applicant's TPS eligibility, although the grounds for denying one form of relief may also be grounds for denying TPS. For example, a person who has been convicted of a particularly serious crime is not eligible for asylum or TPS (8 U.S.C. 1158(b)(2)(A)(ii); 8 U.S.C. 1254a(c)(2)(B)(ii)).
No. This is a notice of an extension of TPS, not a notice of re-designation of Montserrat under the TPS program. An extension of TPS does not change the required dates of continuous residence and continuous physical presence in the United States. This extension does not expand TPS availability to those who are not already TPS class members. To be eligible for benefits under this extension, nationals of Montserrat (or aliens having no nationality who last habitually resided in Montserrat) must have resided continuously in the United States since August 22, 1997, and have been continuously physically present in the United States since August 28, 1997.
Some persons may be eligible for late initial registration under 8 CFR 244.2(f)(2). To apply for late initial registration an applicant must:
(1) Be a national of Montserrat (or alien who has no nationality and who last habitually resided in Montserrat);
(2) Have been continuously physically present in the United States since August 28, 1997;
(3) Have continuously resided in the United States since August 22, 1997; and
(4) Be both admissible as an immigrant, except as provided under section 244(c)(2)(A) of the Act, and not ineligible under section 244(c)(2)(B) of the Act.
Additionally, the applicant must be able to demonstrate that during the registration period from August 28, 1997, through August 27, 1998, he or she:
(1) Was a nonimmigrant or had been granted voluntary departure status or any relief from removal;
(2) Had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal or change of status pending or subject to further review or appeal;
(3) Was a parolee or had a pending request for reparole; or
(4) Was the spouse or child of an alien currently eligible to be a TPS registrant.
An applicant for late initial registration must file an application for late registration no later than 60 days after the expiration or termination of the conditions described above (8 CFR 244.2(g)).
At least 60 days before this extension of TPS expires on August 27, 2004, the Secretary of DHS will review conditions in Montserrat and determine whether the conditions for designation under the TPS program continue to be met at that time, or whether the TPS designation should be terminated. Notice of that determination, including the basis for the determination, will be published in the
If the TPS designation is extended at that time, an alien who has received TPS benefits must re-register under the extension in order to maintain TPS benefits. If, however, the Secretary of DHS terminates the TPS designation, TPS beneficiaries will maintain the immigration status they had before TPS (unless that status had since expired or been terminated) or any other status they may have acquired while registered for TPS. Accordingly, if an alien had no lawful immigration status prior to receiving TPS and did not obtain any status during the TPS period, he or she will revert to that unlawful status upon termination of the TPS designation.
By the authority vested in me as Secretary of DHS under sections 244(b)(1)(B), (b)(3)(A), and (b)(3)(C) of the Act, I have consulted with the appropriate government agencies and determine that the conditions that prompted designation of Montserrat for TPS continue to be met (8 U.S.C. 1254a(b)(3)(A)). Accordingly, I order as follows:
(1) The designation of Montserrat under section 244(b) of the Act is extended for an additional 12-month period from August 27, 2003, to August 27, 2004 (8 U.S.C. 1254a(b)(3)(C)).
(2) There are approximately 325 nationals of Montserrat (or aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS and who are eligible for re-registration.
(3) To maintain TPS, a national of Montserrat (or an alien having no nationality who last habitually resided in Montserrat) who received TPS during the initial designation period must re-register for TPS during the 60-day re-registration period from July 1, 2003, until September 2, 2003.
(4) To re-register, the applicant must file the following: (1) Form I-821, Application for Temporary Protected Status; (2) Form I-765, Application for Employment Authorization; and (3) two identification photographs (1
(5) At least 60 days before this extension terminates on August 27,
(6) Information concerning the extension of designation of Montserrat under the TPS program will be available at local BCIS offices upon publication of this notice and on the BCIS Web site at
Bureau of Customs and Border Protection, Department of Homeland Security.
Proposed collection; comments requested.
The Bureau of Customs and Border Protection (CBP) of the Department of Homeland Security has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995: Conditionally Free Under Conditions of Emergency. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended without a change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before July 31, 2003.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Treasury Desk Officer, Washington, DC 20503. Additionally comments may be submitted to OMB via facsimile to (202) 395-7285.
The Bureau of Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the Proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
If additional information is required contact: Tracey Denning, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Room 3.2.C, Washington, DC 20229, at 202-927-1429.
Bureau of Customs and Border Protection, Department of Homeland Security.
Proposed collection; comments requested.
The Bureau of Customs and Border Protection (CBP) of the Department of Homeland Security has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995: Harbor Maintenance Fee. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with a change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before July 31, 2003.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Treasury Desk Officer, Washington, DC 20503. Additionally comments may be submitted to OMB via facsimile to (202) 395-7285.
The Bureau of Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and
(1) Evaluate whether the proposed collection of information is necessary for the Proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
If additional information is required contact: Tracey Denning, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue NW., Room 3.2.C, Washington, DC 20229, at 202-927-1429.
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.
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 or
Michael McCullough, Director, Office of Multifamily Housing 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. 35, is amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques of other forms of information technology,
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Office of the Secretary, HUD.
Notice of delegation of authority.
In this notice, the Secretary delegates to the Director of the Office of Healthy Homes and Lead Hazard Control, all authority of the Secretary pursuant to the Lead-Based Paint Poisoning Prevention Act, the Residential Lead-Based Paint Hazard Reduction Act of 1992, sections 501 and 502 of the Housing and Urban Development Act of 1970 for matters pertaining to healthy homes, the Lead Disclosure Rule, and the Lead Safe Housing Rule.
June 24, 2003.
John B. Shumway, Office of Finance and Regulatory Enforcement, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-0001, (202) 708-3137, extension 5190. This is not a toll-free number. Speech- or hearing-impaired individuals may access this number through TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
Accordingly, the Secretary delegates authority as follows:
The Secretary delegates to the Director of the Office of Healthy Homes and Lead Hazard Control all authority of the Secretary pursuant to the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821
The authority delegated in this document does not include the authority to issue or waive regulations, or to sue and be sued.
The Secretary authorizes the Director of the Office of Healthy Homes and Lead Hazard Control to redelegate the authority described in Section A.
This delegation supersedes any existing notices of delegations of authority concerning this function prior to March 1, 2003.
Section 7(d) of the Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Office of the Assistant Secretary for Administration, HUD.
Notice of availability of reports.
Through this notice, HUD is making available on its Web site, a copy of HUD's Alternative Fuel Vehicles Report for Fiscal Year 2002 that was prepared in accordance with the Energy Policy Act of 1992.
Robert E. Byrd, Jr., Director, Facilities Management Division, Office of Administration, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-3000, at (202) 708-1955 (this is not a toll-free number). Persons with hearing or speech impairments may access these numbers through TTY by calling the toll-free Federal Information Relay Service number at (800) 877-8339.
The Energy Policy Act (42 U.S.C. 13201
Bureau of International Labor Affairs, Department of Labor.
Notice of availability of funds and solicitation for grant application (SGA 03-19).
This notice contains all of the necessary information and forms needed to apply for grant funding. The U.S. Department of Labor (USDOL), Bureau of International Labor Affairs (ILAB), announces the availability of funds to be granted by cooperative agreement (hereafter referred to as “grant”) to one or more qualifying organizations. USDOL will award up to U.S. $700,000 through one or more grants to an organization or organizations to develop and implement a project(s) designed to contribute to the reduction of social conflict and violence in Colombia by improving the ability of the Colombian trade union movement to participate in the economic, political and social development of the country; protect human and worker rights; and play a positive role in the peace process. USDOL will competitively award a grant to qualified organizations that demonstrate the capacity to design, implement, and manage a project to:
• Bring Colombian trade unionists to the U.S. or a third country to expose them to unionized workplaces with trade skills similar to those of the Colombian trade unionists in order to enhance their own skills and deepen their understanding of effective trade union administration and industrial relations in a workplace outside Colombia.
• Improve the skills of Colombian trade union leaders in trade union administration, collective bargaining, dispute prevention and resolution, English language, communication, and using computers.
The closing date for receipt of applications is Friday, August 8, 2003. Applications must be received by 4:45
Application forms will not be mailed. They are published as part of this
Applications sent by e-mail, telegram, or facsimile (FAX) will not be accepted. Applications sent by other delivery services, such as Federal Express, UPS,
Lisa Harvey, e-mail address:
The expansion of global trade and investment and the improvement of working conditions and protection of basic worker rights are best understood as mutually reinforcing, and not mutually exclusive objectives. In today's environment of widespread market reforms and economic integration, efficient and fair labor markets are a prerequisite for economic growth, increasing living standards, and promoting employment in the U.S. As political developments, market reforms, and the transition to a global economy bring significant changes to national economies, individual labor market systems need to change accordingly to remain viable and to support their populations. In addition, the inability to manage the development of a relatively open market economy during periods of political and social transition impedes the development of political democracy, social cohesion, and equity.
USDOL/ILAB carries out a worldwide International Cooperation Program that helps address some of these difficulties by working to ensure that the greatest possible number of workers benefit from a more open world economy. The three major initiatives of the International Cooperation Program are:
USDOL/ILAB manages its projects in partnership with stakeholders representing the government, employers, workers, and other organizations.
ILAB is authorized to award and administer this program by the Consolidated Appropriations Resolution, 2003, Pub. L. 108-7, 117 Stat. 11 (2003).
Any commercial, international, educational, or not-for-profit organization (including faith-based organizations) which has experience in trade union skills training, knowledge of the international trade union movement, experience working with the Colombian government, and Colombian worker and employer organizations, and/or has experience working with U.S. domestic trade unions is eligible for this grant(s). Partnerships of more than one organization are also eligible although in such a case a lead organization must be identified. The capability of an applicant, partners, and co-applicants to perform necessary aspects of this solicitation will be determined under Section XI—Review and Selection of Applications for Award. All applicants are requested to complete the Survey on Ensuring Equal Opportunity for Applicants (OMB No. 1225-0083) (
Please note that eligible grant applicants must not be classified under the Internal Revenue Code as a 501(c)(4) entity (see 26 U.S.C. 501(c)(4)). According to the Lobbying Disclosure Act of 1995, as amended by 2 U.S.C. 1611, an organization, as described in section 501(c)(4) of the Internal Revenue Code of 1986, that engages in lobbying activities will not be eligible for the receipt of federal funds constituting an award, grant, or loan.
One (1) blue ink-signed original, complete application in English plus two (2) copies of the application must be submitted to the U.S. Department of Labor, Procurement Services Center, 200 Constitution Avenue, NW., Room N-5416, Washington, DC 20210, no later than 4:45 p.m. Eastern Time on the established due date. To aid with review of applications, USDOL also encourages applicants to submit three (3) additional paper copies of the application (five total). Applicants who do not provide additional copies will not be penalized.
The application must consist of two (2) separate parts. Part I of the application must contain the Standard Form (SF) 424, “Application for Federal Assistance” and sections A-F of the Budget Information Form SF 424A (see Appendix A). These forms are also available at
To be considered responsive to this solicitation, the application must consist of the above-mentioned separate sections not to exceed 40 single-sided (8
Upon completion of negotiations, the individual signing the SF 424 on behalf of the applicant must be authorized to bind the applicant.
The grant application package must be received at the designated place by the date and time specified, or it will not be considered. Applications sent by e-mail, telegram, or facsimile (FAX) will not be accepted. Applications sent by other delivery services, such as Federal Express, UPS,
Any application received at the Office of Procurement Services after 4:45 pm Eastern Time on Friday, August 8, 2003 will not be considered unless it is received before the award is made and:
• It was sent by registered or certified mail no later than the fifth calendar day before [Enter Date]; or
• It was sent by U.S. Postal Service Express Mail/Next Day Service from the post office to the addressee no later than 5 p.m. at the place of mailing two (2) working days (excluding weekends and Federal holidays), prior to [Enter date]; or
• It is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the U.S. Department of Labor at the address indicated.
The only acceptable evidence to establish the date of mailing of a late application sent by registered or certified mail is the U.S. Postal Service postmark on the envelope or wrapper and on the original receipt from the U.S. Postal Service. If the postmark is not legible, an application received after the above closing time and date shall be processed as if mailed late. “Postmark” means a printed, stamped, or otherwise placed impression (not a postage meter machine impression) that is readily identifiable without further action as having been applied and affixed by an employee of the U.S. Postal Service on the date of mailing. Therefore, applicants should request that the postal clerk place a legible hand cancellation “bull's-eye” postmark on both the receipt and the envelope or wrapper.
The only acceptable evidence to establish the date of mailing of a late application sent by U.S. Postal Service Express Mail/Next Day Service from the post office to the addressee is the date entered by the Post Office receiving clerk on the “Express Mail/Next Day Service—Post Office to Addressee” label and the postmark on the envelope or wrapper on the original receipt from the U.S. Postal Service. “Postmark” has the same meaning as defined above. Therefore, applicants should request that the postal clerk place a legible hand cancellation “bull's-eye” postmark on both the receipt and the envelope or wrapper.
The only acceptable evidence to establish the time of receipt at the U.S. Department of Labor is the date/time stamp of the Procurement Service Center on the application wrapper or other documentary evidence or receipt maintained by that office.
All applicants are advised that U.S. mail delivery in the Washington DC area has been slow and erratic due to concerns involving anthrax contamination. Applicants must take this into consideration when preparing to meet the application deadline. It is recommended that you confirm receipt of your application with your delivery service.
Up to U.S. $700,000 is available for this project, and USDOL reserves the right to award more than one grant. USDOL may award one or more grants to one organization or several, or to a partnership of more than one organization. The award of any sub-contract will be subject to USDOL approval (
The duration of the project funded by this SGA is up to two (2) years. The start date of program activities will be negotiated upon award of the grant, which will take place no later than September 30, 2003.
This SGA announces the availability of funds for a project to contribute to the reduction of social conflict and violence in Colombia by improving the ability of the Colombian trade union movement to: participate in the economic, political and social development of the country; protect human and worker rights; and play a positive role in the peace process. Specific project objectives are identified in Section III.C. Applicants should submit proposals for projects that demonstrate the organizations' capabilities to implement a project in accordance with the Statement of Work and the selection criteria. USDOL encourages applicants to be creative in proposing innovative and cost-effective interventions that will produce a demonstrable impact. Funds will be provided by grant to qualifying organizations. The grant will be actively managed by USDOL/ILAB to assure achievement of the stated project objectives.
Selection of an organization as a grant recipient does not constitute approval of the grant application as submitted. Before the actual grant is awarded, USDOL may enter into negotiations about such items as program components, funding levels, and administrative systems in place to support grant implementation. If the negotiations do not result in an acceptable submission, the Grant Officer reserves the right to terminate the negotiation and decline to fund the application. Award is also contingent upon signature of a letter of agreement between USDOL and relevant ministries in target countries.
Violence against trade unionists and their leaders continues to be a critical problem in Colombia. In the midst of an armed conflict between the government, guerrillas, and paramilitary forces, unions have played a key role in mobilizing civil society in support of peace negotiations. As a result, both paramilitary forces and guerilla groups have targeted union leaders. According to the State Department's annual Human Rights Report, 178 labor unionists were killed in 2002 and 1,875 have been killed since 1991. Also in 2002, an additional 189 received death threats, 26 were kidnapped, 8 disappeared, and 17 members survived physical attempts on their life. According to former Colombian Labor Minister, Angelino Garzon, “Colombia is losing an entire generation of labor leaders whose contribution to improving economic opportunities for workers through constructive dialogue with employers and government is invaluable.”
Violence against trade unionists is perpetuated by a climate of impunity. According to the State Department's Human Rights Report, there were 376 criminal investigations into violations of the right to life of unionists from August 1986 to April 2003. Of these, 321 were in the preliminary stage, 24 were at the investigative stage, 3 were at the trial stage, 7 had been sent to military criminal courts, and 13 were awaiting assignment. Guilty verdicts were issued in only five cases.
Despite these major challenges, Colombia's trade unions continue to play an important role as
The grantee will establish a selection procedure to identify Colombian trade union leaders who could benefit from advanced training in trade union administration, collective bargaining, dispute prevention and resolution, and related skills.
The Grantee will implement, in partnership with USDOL, a project designed to contribute to the reduction of social conflict and violence in Colombia by improving the ability of the Colombian trade union movement to participate in the economic, political and social development of the country; protect human and worker rights; and play a positive role in the peace process. Specific project objectives include:
• Improving the skills of Colombian trade union leaders in trade union administration, collective bargaining, dispute prevention and resolution, English language, communications, and using computers.
• Bringing Colombian trade unionists to the U.S. or a third country to expose them to unionized workplaces with trade skills similar to those of the Colombian trade unionists in order to enhance their own skills and deepen their understanding of effective trade union administration and industrial relations in a workplace outside Colombia.
The selected Grantee(s) will be responsible for developing a strategy for successfully achieving the stated objectives of the project and addressing the problem(s) identified in the Background and Problem Statement, developing and implementing the major tasks to be accomplished as part of that strategy, tracking and reporting on progress in achieving the stated objectives, and providing any necessary services.
When developing the strategy and activities, the Applicant should take into consideration the following issues:
• Need to carefully select for training those trade union leaders who are: (a) Committed to training other trade unionists upon completion of their training in the U.S. or a third country, (b) most likely to adapt to living conditions in the U.S., (c) capable of learning in all skill areas, and (d) well-respected within the labor community for their commitment to democracy, honesty, transparency, and the peaceful resolution of conflict.
• Need to effectively orient trainees prior to departure to U.S. or a third country for training.
• Need to offer on-going counseling to those trainees who may require it throughout their training in the U.S. or third country.
• Need to ensure that trainees are provided with opportunities to disseminate their learning to other trade unionists upon return to Colombia.
By the end of the grant period, the project will have:
• Trained at least 20 trade union leaders in trade union administration, collective bargaining, dispute prevention and resolution, English language, communication, and computer skills.
• Established a communication network between international trade unions and non-governmental organizations that will provide continued support to the trade union leaders upon their return to Colombia.
• Developed a plan to safely reintegrate the trade union leaders into Colombia.
• Developed and implemented a system to ensure that the trained trade union leaders disseminate the information and skills that they learned in the U.S. or third country to their Colombian counterparts.
The selected Grantee will be responsible for identifying and producing the activities, outputs, and deliverables that will support achievement of these expected outcomes.
Following the award of the grant, the Grantee(s) shall collaborate with USDOL/ILAB to:
• Develop a Project Document (including a project budget) that will set the technical parameters and provide guidance to the project. It should include all information and be prepared according to the standardized format outlined by USDOL. While the Applicant's original proposal will serve as the basis of the Project Document, in every case USDOL has found it advantageous to visit the field and reach consensus on the project strategy with host country counterparts in order to further inform the project design. USDOL must receive a draft of the Project Document 45 days after returning from travel to the relevant area(s). The Project Document must be finalized no later than 30 days after receipt of USDOL comments on the draft.
• Establish a Workplan identifying major project activities, deadlines for their completion, and person(s) responsible for completing these activities (within 60 days after the Project Document is finalized).
• Set project indicators, including indicators that support ILAB's Government Performance and Results Act (GPRA) goal, “Improve living standards and conditions of work for workers in developing and transition countries.” (within 90 days of finalizing the Project Document).
• Create a Performance Monitoring Plan (PMP) to establish the data needed to measure achievement of project indicators and the methods for collection and reporting. It should include all information and be prepared according to the standardized format outlined by USDOL (within 90 days of finalizing the Project Document).
The Grantee(s) must submit copies of all required documents to USDOL by the specified due dates. Other documents that may be produced are to be submitted by mutually agreed-upon deadlines. The Project Document, Workplan, project indicators, PMP, and data collection system are subject to final approval by the Grant Officer's Technical Representative (GOTR) responsible for monitoring the grant.
Following the award of the grant(s), USDOL shall:
• Provide the Grantee(s) with programmatic support to help ensure effective implementation of the project, including training and consultation in USDOL/ILAB management, monitoring, and evaluation systems and standard operating procedures.
• Provide advice and consultation to Grantee(s) on specific program criteria.
• If, based upon the responses to this solicitation and subsequent to the award, USDOL determines that it is necessary, travel to the field with the Grantee(s) and other technical experts for a project design mission before finalizing the project design and the Project Document. USDOL will procure the services of technical experts if it determines that such expertise is necessary for the project design mission.
• Fund at least two project evaluations—a mid-term evaluation at approximately the midpoint of the grant period and a final evaluation approximately two months prior to the end of the grant period. USDOL/ILAB—in consultation with the Grantee(s)—will be responsible for drafting and finalizing all evaluation Terms of Reference (TOR), procuring the services of an independent evaluator (who will write the evaluation report), and providing at least one representative from USDOL/ILAB to participate on the evaluation team, when appropriate. USDOL/ILAB may choose to perform additional evaluations as appropriate.
• Have the right, at all reasonable times, to review all documents pertaining to the project, participate on field missions (including monitoring and evaluation missions), and to discuss administrative and technical issues pertaining to the project with the Grantee.
Following the award of the grant(s), the Grantee(s) shall:
• Establish the institutional and management systems and means necessary to provide and monitor the delivery of services and distribute wages and material effectively.
• If USDOL determines that it is necessary, travel to the field with USDOL and other technical experts for a project design mission before finalizing the project design and the Project Document. The Grantee(s) shall bear the financial costs for having its representative(s) participate on the project design mission.
• Assist in project evaluations, including reviewing and providing comments on the evaluation Terms of Reference (TORs) drafted by USDOL and evaluation reports written by the lead evaluator. If invited to participate on an evaluation mission by USDOL, the Grantee(s) shall bear the financial costs for having a representative of the Grantee(s) participate on an evaluation team (
• Submit trip reports to USDOL within fourteen (14) calendar days of project-related travel. If the implementing partner travels with a USDOL staff member, the implementing organization will submit a draft trip report to the staff member within fourteen (14) calendar days of project-related travel for comments. The format for the trip report will be provided by USDOL.
• Inform USDOL/ILAB at least one (1) month prior to scheduling any major public events or ceremonies regarding the project.
• Submit to USDOL all media-related and educational materials developed by it or its sub-contractors under this Grant(s), including relevant press releases, for use in this project before they are reproduced, published, or used. The Grantee(s) must consult with USDOL to ensure that materials are compatible with USDOL materials relating to its International Cooperation Program. USDOL considers brochures, pamphlets, videotapes, slide-tape shows, curricula, and any other training materials used in the project to be educational materials. USDOL will review materials for technical accuracy. USDOL will also review training curricula and purchased training materials for accuracy before they are used. The Grantee(s) must obtain prior approval from the Grant Officer for all materials developed or purchased under this grant. All materials produced by Grantee(s) must be provided to USDOL in digital format for possible publication on the Internet by USDOL.
USDOL expects all key personnel to work full-time on the project. All key personnel must be fluent in both written and spoken Spanish and English. The Grant Officer must approve candidates for all key personnel positions. USDOL's Grant Officer's Technical Representative (GOTR) shall review candidates' qualifications and provide recommendations to the Grant Officer regarding the selection of candidates for all key personnel positions. The Grantee(s) shall submit re
Key personnel may only be changed with the approval of the Grant Officer. The Grantee(s) shall not substitute or replace key personnel unless new personnel are at least equal in qualifications to those personnel who are replaced. If a need to find new key personnel arises, the Grantee(s) shall notify the GOTR as soon as the need becomes known. If the Grant Officer is unable to approve the personnel change, he/she reserves the right to terminate the grant.
Organizations may apply for funding in partnership with other organizations, but in such a case, a lead organization must be identified. Use of sub-contractors is subject to Federal laws and regulations, including OMB circulars requiring free and open competition for procurement transactions.
The Grant Officer must approve all sub-contractors. USDOL's Grant Officer's Technical Representative (GOTR) shall review candidates' qualifications and provide recommendations to the Grant Officer regarding the selection of candidates for all sub-contractors. The lead organization shall submit a list of previous projects implemented by the proposed sub-contractor, along with a description of qualifications, re
Except as specifically provided, USDOL/ILAB acceptance of a proposal and an award of federal funds to sponsor any program(s) does not provide a waiver of any grant requirement and/or procedures. For example, if an application identifies a specific sub-contractor to provide the services, the USDOL/ILAB award does not provide the justification or basis to sole-source the procurement,
All reports (
The Grantee(s) shall submit financial reports on a quarterly basis. The first reporting period shall end on the last day of the fiscal quarter (December 31, March 31, June 30, or September 30) during which the grant was signed.
The Grantee(s) shall use Standard Form (SF) 269A,
If the Grantee(s) uses the U.S. Department of Health and Human Services Payment Management System (HHS PMS), they shall also send USDOL copies of the PSC 272 that it submits to HHS, on the same schedule. Otherwise, the Grantee(s) shall submit Standard Form (SF) 272,
Financial reports are due within 30 days of the end of the reporting period (
After signing the agreement, the Grantee(s) shall submit progress reports to USDOL/ILAB at the end of each fiscal quarter. The first reporting period shall end on the last day of the fiscal quarter (December 31, March 31, June 30, or September 30) during which the Grant was signed. Between reporting dates, the Grantee(s) shall also immediately inform USDOL/ILAB of significant developments and/or problems affecting the organization's ability to accomplish work.
The Grantee(s) shall submit two types of progress reports according to the standardized format used by USDOL/ILAB:
Status Reports compare actual and planned activities during the reporting period, which consists of one quarter (January—March and July—September). Its purpose is to provide an update on the Workplan, problems/solutions, major achievements, or modifications. The Status Report should be brief and include an attached project Workplan indicating the status of Workplan activities: “completed,” “on schedule,” “delayed,” “cancelled.” The body of report should provide a summary explanation of any deviation from the Workplan and recommended actions.
Status Reports are due within 30 days of the end of the reporting period (
Technical Progress Reports provide information on how the project is progressing in achieving its stated objectives. Technical Progress Reports will be based on the project's stated objectives, indicators, and Performance Monitoring Plan (PMP) and will provide both quantitative and qualitative information and a narrative assessment of performance for the preceding six-month period (January—June and July—December). Data measuring achievement of the project's indicators will be attached to the narrative, which will provide a composite overview of progress, trends, problems, new proposals, lessons learned, and expenditures. The body of the Technical Progress Report should be 2-3 pages in length, stressing major points related to strategy.
Technical Progress Reports are due within 30 days of the end of the reporting period (
All reports shall cite the assigned grant number. The Grantee(s) shall submit hard copy of all financial reports to each of the following persons:
The Grantee(s) shall submit one hard copy of all technical reports to each of the following persons:
The Grantee(s) shall submit a quarterly travel plan to the GOTR. The plan shall include the following information for all individuals traveling for the Grantee(s) to support activities covered by this grant:
• Name of the person(s) who will be traveling;
• Destination(s);
• Dates of travel;
• Purpose of travel—what they will be doing and why.
The Grantee(s) should submit the quarterly travel plan no later than four weeks prior to the start of each subsequent fiscal quarter (
All travelers should submit finalized travel details to the GOTR no later than 4 weeks prior to the desired departure date. If any major holiday occurs during those 4 weeks, travelers should submit finalized details earlier.
Individuals are not permitted to travel until USDOL/ILAB has received country clearance from the State Department (via e-mail or cable) or has received written authorization (including by e-mail) from the GOTR. This also applies to expatriates living abroad who go on personal or home leave: although they do not need clearance to enter the U.S., they do need clearance to re-enter the country in which they are stationed.
While travelers may cancel trips at any time, USDOL/ILAB will not permit any amendments to a clearance cable (
In all circumstances, the following shall be displayed on printed materials: “Preparation of this item was funded by the United States Department of Labor under Grant No. [insert the appropriate Grant number].”
When issuing statements, press releases, requests for proposals, bid solicitations, and other documents describing projects or programs funded in whole or in part with Federal money, all Grantees receiving Federal funds must clearly state:
• The percentage of the total costs of the program or project, which will be financed with Federal money;
• The dollar amount of Federal funds for the project or program; and
• The percentage and dollar amount of the total costs of the project or program that will be financed by non-governmental sources.
In consultation with ILAB, the Grantee(s) will acknowledge USDOL's role in one of the following ways:
• The USDOL logo may be applied to USDOL-funded material prepared for world-wide distribution, including posters, videos, pamphlets, research documents, national survey results, impact evaluations, best practice reports, and other publications of global interest. The Grantee(s) must consult with USDOL on whether the logo may be used on any such items prior to final draft or final preparation for distribution. In no event shall the USDOL logo be placed on any item until USDOL has given the Grantee written permission to use the logo on the item.
• All documents should include the following notice: “This document does not necessarily reflect the views or policies of the U.S. Department of Labor, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”
Grantees, which may include faith-based organizations, will be subject to applicable Federal laws (including provisions of appropriations law) and the applicable Office of Management and Budget (OMB) Circulars. Determinations of allowable costs will be made in accordance with the applicable Federal cost principles,
• 29 CFR Part 36—Federal Standards for Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.
• 29 CFR Part 93—New Restrictions on Lobbying.
• 29 CFR Part 95—Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations, and with Commercial Organizations, Foreign Governments, Organizations Under the Jurisdiction of Foreign Governments and International Organizations.
• 29 CFR Part 96—Federal Standards for Audit of Federally Funded Grants, Contracts and Agreements.
• 29 CFR Part 98—Federal Standards for Government wide Debarment and Suspension (Nonprocurement) and Government-wide Requirements for Drug-Free Workplace (Grants).
• 29 CFR Part 99—Federal Standards for Audits of States, Local Governments, and Non-Profit Organizations.
Sub-contracts must be awarded in accordance with 29 CFR 95.40-48. In compliance with Executive Orders 12876 as amended, 13230, 12928, and 13021 as amended, the Grantee(s) is strongly encouraged to provide subcontracting opportunities to Historically Black Colleges and Universities, Hispanic-Serving Institutions and Tribal Colleges and Universities.
Grant funds may not be encumbered/obligated by the Grantee(s) before or after the period of performance. Encumbrances/obligations outstanding as of the end of the grant period may be liquidated (paid out) after the end of the grant period. Such encumbrances/obligations may involve only commitments for which a need existed during the grant period and which are supported by approved contracts, purchase orders, requisitions, invoices, bills, or other evidence of liability consistent with the Grantee's purchasing procedures and incurred within the grant period. All encumbrances/ obligations incurred during the grant period must be liquidated within 90 days after the end of the grant period, if practicable.
USDOL, through its authorized representatives, has the right, at all reasonable times, to make site visits to review project accomplishments and management control systems and to provide such technical assistance as may be required. If USDOL makes any site visit on the premises of the Grantee or a sub-contractor(s) under this grant, the Grantee must provide and must require its sub-contractors to provide all reasonable facilities and assistance for the safety and convenience of the Government representatives in the performance of their duties. All site visits and evaluations will be performed so as not to unduly delay the work.
The closeout of a grant is the process by which a Federal grantor agency determines that all applicable administrative actions and all required work of the grant have been completed by the grantee and the grantor.
The date when all work under a grant is completed or the date in the grant award document, or any supplement or amendment thereto, on which Federal assistance ends, whichever comes first.
Disallowed costs are those charges to a grant that the grantor agency or its representative determines to not be allowed in accordance with the applicable Federal Cost Principles or other conditions contained in the grant.
Grants shall be closed out in accordance with the following procedures:
• Upon request, the Grantor shall make prompt payments to a Grantee for allowable reimbursable costs under the grant being closed out.
• The Grantee shall immediately refund to the Grantor any balance of unobligated (unencumbered) cash advanced to the Grantee that is not authorized for retention by the Grantee for use on other grants.
• Within 90 days after completion of the grant, the Grantee shall submit all financial, performance and other reports required by the Grant Officer to close out the grant. The Grant Officer may authorize extensions when requested by the grantee.
• The Grant Officer shall make a settlement for any upward or downward adjustments to the Federal share of costs after these reports are received.
• In the case of grants that include matching/in-kind contributions, the Grantee is legally required to provide the total amount of matching/in-kind contributions indicated on the face sheet of the agreement, as amended. Failure to provide this level of matching/in-kind contribution shall result in the disallowance of all or part of otherwise allowable Federal share costs, equal to the total matching/in-kind share committed to, less the share actually provided.
• In the event that a final audit has not been performed prior to the closeout of the grant, the Grantor shall retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.
The performance of the Grantee will be assessed based on the timely completion of one or more deliverables
USDOL will screen all applications to determine whether all required elements are present and clearly identifiable. A Technical Panel will objectively rate each complete application against the criteria described in this announcement. The panel recommendations to the Grant Officer are advisory in nature. The Grant Officer may elect to select one or more Grantees on the basis of the initial proposal submission, or the Grant Officer may establish a competitive or technically acceptable range for the purpose of selecting qualified applicants. If deemed appropriate, following the Grant Officer's call for the preparation and receipt of final revisions of proposals, the evaluation process described above will be repeated to consider such revisions. The Grant Officer will make a final selection determination based on what is most advantageous to the Government, considering factors such as panel findings, geographic presence of the applicants, and the best value to the government, cost, and other factors. The Grant Officer's determination for award under this SGA is final.
The criteria below will serve as the basis upon which submitted applications will be evaluated. Technical aspects of the application will constitute 100 points of the total evaluation. Up to five (5) additional points will be given for leveraging non-Federal resources.
In order to assist USDOL in assessing the efficient and effective allocation of project funding, the Applicant shall submit a project budget that clearly details the costs for performing all of the requirements presented in this solicitation, including producing all deliverables, reporting on implementation and progress, and monitoring progress. Applicants are reminded to budget for compliance with the administrative requirements set forth (copies of all regulations are referenced in this SGA are available at no cost, on-line, at
The technical panel will review grant applicants against the criteria listed below on the basis of 100 points.
• The extent to which the application sets forth a clear and supportable course of action to strengthen the capacity of Colombian trade union leaders to: (a) More effectively support the economic, political and social development of Colombia, (b) promote respect for human and worker rights; and (c) play a positive role in the peace process. The Applicant will be evaluated on the clear identification and description of the specific strategy(s) the Applicant proposes to use, its effectiveness, and attainability of project objectives by the end of the grant period. (10 points)
• Demonstrated familiarity with the major issues related to the components being addressed (
• A monitoring and evaluation plan for measuring project performance that includes challenging but realistic targets and measurable, verifiable project indicators that measure achievement of project objectives and performance in project implementation. (5 points)
• Submission of a schedule of quarterly deliverables that will serve to determine the level of performance of the contractor. The identification of deliverables that are presented in the proposal should be objective, verifiable, and demonstrate progress in achieving project objectives. (5 points)
• Prior experience working with Colombian trade unionists to strengthen their capacity to play a constructive role in the economic, political and social development of Colombia. The application shall include information as an attachment (which will not count towards the page limit) regarding previous grants, contracts, or grants, including (a) the organization for which the work was done, (b) a contact person in that organization with his/her current phone number, (c) the dollar value of the grant, contract, or Grant for the project(s), (d) the time frame and professional effort, either directly by key personnel, by consultants, or under contractual arrangements involved in the project(s), (e) a brief summary of the work performed; and (f) a brief summary of accomplishments. (10 points)
• Prior experience in designing and implementing activities related to training in trade union administration, collective bargaining, industrial dispute prevention and resolution, English as a second language, basic computer literacy, and relocating training candidates for training in the U.S. or a third country. (5 points)
• Clear organizational structure and management plan, illustrating experience with carrying out participatory development activities with organizations (
• Demonstration of strong financial management and internal control systems. (5 points)
• Key personnel with prior experience directly related to the proposed work, including technical and language qualifications, professional competence, relevant academic background, and demonstrated experience. Applicants shall submit a re
• Clear management plan demonstrating the staffing requirements and other resources needed to implement the approach. (10 points)
USDOL will award up to five (5) additional rating points to applications that include non-Federal resources that significantly expand the size and scope of project-related activities. These programs will not be financed by the project, but can complement and enhance project objectives. To be eligible for the additional points, the applicant must list the resource(s), the nature, and possible activities anticipated and any partnerships, linkages, or coordination of activities, cooperative funding, etc.
This outline is provided as a guideline. Organizations may elect a format of their choosing, subject to the requirements of this announcement.
This stated commitment will be incorporated into the text of the grant with the selected applicant(s).
Bureau of International Labor Affairs, Department of Labor.
Notice of availability of funds and solicitation for grant application (SGA 03-17).
This notice contains all of the necessary information and forms needed to apply for grant funding. The U.S. Department of Labor (USDOL), Bureau of International Labor Affairs (ILAB), announces the availability of funds to be granted by cooperative agreement (hereafter referred to as “grant”) to one or more qualifying organizations. USDOL will award up to U.S. $500,000 through one or more grants to an organization or organizations to develop and implement a project(s) designed to contribute to the reduction of work-related deaths and injuries in the Republic of Serbia. Partnerships between more than one organization are eligible and encouraged, in particular with qualified, regionally-based organizations in order to build local capacity, although in such a case a lead organization must be identified.
The closing date for receipt of applications is Friday, August 8, 2003. Applications must be received by 4:45 p.m. (Eastern Time) at the address below.
Application forms will not be mailed. They are published as part of this
Applications sent by e-mail, telegram, or facsimile (FAX) will not be accepted. Applications sent by other delivery services, such as Federal Express, UPS, etc., will be accepted; the applicant, however, bears the responsibility for timely submission. Applications that do not meet the conditions set forth in this notice will not be honored. No exceptions to the mailing and delivery requirements set forth in this notice will be granted.
Lisa Harvey, e-mail address:
The expansion of global trade and investment and the improvement of working conditions and protection of basic worker rights are best understood as mutually reinforcing, and not mutually exclusive objectives. In today's environment of widespread market reforms and economic integration, efficient and fair labor markets are a prerequisite for economic growth, increasing living standards, and promoting employment in the U.S. As political developments, market reforms, and the transition to a global economy bring significant changes to national economies, individual labor market systems need to change accordingly to remain viable and to support their populations. In addition, the inability to manage the development of a relatively open market economy during periods of political and social transition impedes the development of political democracy, social cohesion, and equity.
USDOL/ILAB carries out a worldwide International Cooperation Program that helps address some of these difficulties by working to ensure that the greatest possible number of workers benefit from a more open world economy. The three major initiatives of the International Cooperation Program are:
USDOL/ILAB manages its projects in partnership with stakeholders representing the government, employers, workers, and other organizations.
ILAB is authorized to award and administer this program by the Consolidated Appropriations Resolution, 2003, Pub. L. 108-7, 117 Stat. 11 (2003).
Any commercial, international, educational, or not-for-profit organization (including faith-based organizations) possessing experience in one or more of the following areas are eligible to apply for this grant:
• The field of worker health and safety;
• Assisting foreign governments to strengthen institutions;
• Facilitating strategic planning;
• Development of training curricula; and
• Delivery of training.
The Labor Ministry is the primary government entity that will be involved, but the project may also include other ministries of government with responsibilities for worker safety and health. Partnerships of more than one organization are also eligible and encouraged, in particular with qualified regionally-based organizations to further build local capacity, although in such a case a lead organization must be identified. The capability of an applicant, partners, and co-applicants to perform necessary aspects of this solicitation will be determined under Section XI—Review and Selection of Applications for Award. All applicants are requested to complete the Survey on Ensuring Equal Opportunity for Applicants (OMB No. 1225-0083) (
Please note that eligible grant applicants must not be classified under the Internal Revenue Code as a 501(c)(4) entity (
One (1) blue ink-signed original, complete application in English plus two (2) copies of the application must be submitted to the U.S. Department of Labor, Procurement Services Center, 200 Constitution Avenue, NW., Room N-5416, Washington, DC 20210, no later than 4:45 p.m. Eastern Time on the established due date. To aid with review of applications, USDOL also encourages applicants to submit three (3) additional paper copies of the application (five total). Applicants who do not provide additional copies will not be penalized.
The application must consist of two (2) separate parts. Part I of the application must contain the Standard Form (SF) 424, “Application for Federal Assistance” and sections A-F of the Budget Information Form SF 424A (
To be considered responsive to this solicitation the application must consist of the above-mentioned separate sections not to exceed 25 single-sided (8
Upon completion of negotiations, the individual signing the SF 424 on behalf of the applicant must be authorized to bind the applicant.
The grant application package must be received at the designated place by the date and time specified, or it will not be considered. Applications sent by e-mail, telegram, or facsimile (FAX) will not be accepted. Applications sent by other delivery services, such as Federal Express, UPS,
Any application received at the Office of Procurement Services after 4:45 pm Eastern Time on Friday, August 8, 2003 will not be considered unless it is received before the award is made and:
• It was sent by registered or certified mail no later than the fifth calendar day before [Enter Date]; or
• It was sent by U.S. Postal Service Express Mail/Next Day Service from the post office to the addressee no later than 5 pm at the place of mailing two (2) working days (excluding weekends and Federal holidays), prior to [Enter date]; or
• It is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the U.S. Department of Labor at the address indicated.
The only acceptable evidence to establish the date of mailing of a late application sent by registered or certified mail is the U.S. Postal Service postmark on the envelope or wrapper and on the original receipt from the U.S. Postal Service. If the postmark is not legible, an application received after the above closing time and date shall be processed as if mailed late. “Postmark” means a printed, stamped, or otherwise placed impression (not a postage meter machine impression) that is readily identifiable without further action as having been applied and affixed by an employee of the U.S. Postal Service on the date of mailing. Therefore, applicants should request that the postal clerk place a legible hand cancellation “bull's-eye” postmark on both the receipt and the envelope or wrapper.
The only acceptable evidence to establish the date of mailing of a late application sent by U.S. Postal Service Express Mail/Next Day Service from the post office to the addressee is the date entered by the Post Office receiving clerk on the “Express Mail/ Next Day Service—Post Office to Addressee” label and the postmark on the envelope or wrapper on the original receipt from the U.S. Postal Service. “Postmark” has the same meaning as defined above. Therefore, applicants should request that the postal clerk place a legible hand cancellation “bull's-eye” postmark on both the receipt and the envelope or wrapper.
The only acceptable evidence to establish the time of receipt at the U.S. Department of Labor is the date/time stamp of the Procurement Service Center on the application wrapper or other documentary evidence or receipt maintained by that office.
All applicants are advised that U.S. mail delivery in the Washington DC area has been slow and erratic due to concerns involving anthrax contamination. Applicants must take this into consideration when preparing to meet the application deadline. It is recommended that you confirm receipt of your application with your delivery service.
Up to U.S. $500,000 is available for this project, and USDOL reserves the right to award more than one grant. USDOL may award one or more grants to one organization or several, or to a partnership of more than one organization. The award of any sub-contract will be subject to USDOL approval (
The duration of the project funded by this SGA is up to two (2) years. The start date of program activities will be negotiated upon award of the grant, which will take place no later than September 30, 2003.
USDOL is seeking qualified organizations that will implement, in partnership with USDOL, a project to support the reduction of workplace injuries and deaths in Serbia. Specific project objectives are identified in Section III.C. USDOL encourages applicants to be creative in proposing innovative and cost-effective interventions that will produce a demonstrable and sustainable impact.
Proposals should demonstrate organizations' capabilities to implement projects in accordance with the Statement of Work and the rating criteria (Section XI). Funds will be provided by grant to qualifying organizations. The grant will be actively managed by USDOL/ILAB to assure achievement of the stated project objectives. The award of any sub-contract will be subject to USDOL policies and approval (
Selection of an organization as a grant recipient does not constitute approval of the grant application as submitted. Before the actual grant is awarded, USDOL may enter into negotiations about such items as program components, funding levels, and
Serbia is undertaking sweeping reforms to accelerate its transition toward an open free market. For example, the government recently passed legislation that reduces income taxes to 14 percent. In addition, the government has embarked on a campaign of economic reform aimed at improving prospects for attracting investment and generating jobs. These reforms are intended to assist the government of Serbia in its efforts to become an integrated member of the European economic union.
The Government is reforming labor legislation both to augment its economic reforms and to align itself with European Union (EU) standards. The labor ministry, created in 2000, is receiving support from the World Bank to assist workers who may be adversely affected by the economic changes occurring in Serbia.
In order to further demonstrate its commitment to workers, the Government is also seeking assistance to help strengthen the labor ministry's capacity to reduce workplace injuries and deaths through improved compliance with occupational safety and health laws. New legislation has been drafted that, when adopted, will dramatically expand the responsibility of the Ministry of Labor and Employment (MOLE) to monitor worksite health and safety conditions, with the goal of mitigating work-related injuries and deaths in the country.
The main constraints confronting the Ministry in the area of workplace safety and health are:
• Outdated occupational safety and health (OSH) regulations and practices.
• Poorly trained inspector corps.
• Underutilization of data to focus inspection efforts more strategically.
• Limited campaigns to educate employers and workers about the need for and benefits of improved workplace safety and health.
• Lack of coordination among different government agencies that have some responsibilities related to workplace safety and health.
Legislation has already been prepared that, when passed, will consolidate safety and health inspection authority under the labor inspectorate of the MOLE. The inspectorate plans to almost triple its number of inspectors in order to fully enforce this pending legislation (the MOLE has been authorized to hire 500 additional inspectors, increasing its monitoring force from 268 to 768). The legislation will also require that a reorganized labor inspectorate adopt practices and procedures to ensure that enterprises using new technologies adopt appropriate new safety and health standards. Meeting these needs will require a significant increase in the capacity and the flexibility of the new labor inspectorate and its staff.
Applicants shall target the MOLE labor inspectorate.
The Grantee(s) will implement, in partnership with USDOL, a project to help reduce workplace injuries and deaths in Serbia. The reduction of workplace injuries and deaths is expected to occur as the Grantee(s) assists the MOLE in its efforts to improve compliance by Serbian employers with workplace safety and health laws. The Grantee(s) will assist the MOLE through the provision of the following types of assistance:
• Development of a five-year strategic plan to establish goals, objectives, measures of accountability, and an annual timetable and set of activities for implementing the plan.
• Development of a set of procedures and policies to guide OSH inspectors in carrying out their work.
• Training of inspectors in the implementation of new procedures and policies.
• Development of new approaches to utilize existing data more effectively to target low levels of OSH compliance.
• Development of an ongoing outreach campaign to employers and workers in order to prevent injuries and deaths from occurring.
The selected Grantee(s) will be responsible for developing a strategy for successfully achieving the stated objectives of the project, addressing the problems identified in the Background and Problem Statement, developing and implementing the major tasks to be accomplished as part of that strategy, tracking and reporting on progress in achieving the stated objectives, and providing any necessary related services.
By the end of the grant period, the project will have:
• Developed a five-year strategic plan to establish goals, objectives, measures of accountability, and an annual timetable and set of activities for implementing the plan.
• Developed a set of procedures and policies to guide OSH inspectors in carrying out their work.
• Trained inspectors in the implementation of new procedures and policies.
• Developed new approaches to utilize existing data more effectively to target low levels of OSH compliance.
• Developed an ongoing outreach campaign to employers and workers in order to prevent injuries and deaths from occurring.
Following the award of the grant, the Grantee(s) shall collaborate with USDOL/ILAB to:
• Develop a Project Document (including a project budget) that will set the technical parameters and provide guidance to the project. It should include all information and be prepared according to the standardized format outlined by USDOL. While the Applicant's original proposal will serve as the basis of the Project Document, in every case USDOL has found it advantageous to visit the field and reach consensus on the project strategy with host country counterparts in order to further inform the project design. USDOL must receive a draft of the Project Document 45 days after returning from travel to the relevant area(s). The Project Document must be finalized no later than 30 days after receipt of USDOL comments on the draft.
• Establish a Workplan identifying major project activities, deadlines for their completion, and person(s) responsible for completing these activities (within 60 days after the Project Document is finalized).
• Set project indicators, including indicators that support ILAB's Government Performance and Results Act (GPRA) goal, “Improve living standards and conditions of work for workers in developing and transition countries.” (within 90 days of finalizing the Project Document).
• Create a Performance Monitoring Plan (PMP) to establish the data needed
The Grantee(s) must submit copies of all required documents to USDOL by the specified due dates. Other documents that may be produced are to be submitted by mutually agreed-upon deadlines. The Project Document, Workplan, project indicators, PMP, and data collection system are subject to final approval by the Grant Officer's Technical Representative (GOTR) responsible for monitoring the grant.
Following the award of the grant(s), USDOL shall:
• Provide the Grantee(s) with programmatic support to help ensure effective implementation of the project, including training and consultation in USDOL/ILAB management, monitoring, and evaluation systems and standard operating procedures.
• Provide advice and consultation to Grantee(s) on specific program criteria.
• If, based upon the responses to this solicitation and subsequent to the award, USDOL determines that it is necessary, travel to the field with the Grantee(s) and other technical experts for a project design mission before finalizing the project design and the Project Document. USDOL will procure the services of technical experts if it determines that such expertise is necessary for the project design mission.
• Fund at least two project evaluations—a mid-term evaluation at approximately the midpoint of the grant period and a final evaluation approximately two months prior to the end of the grant period. USDOL/ILAB—in consultation with the Grantee(s)—will be responsible for drafting and finalizing all evaluation Terms of Reference (TOR), procuring the services of an independent evaluator (who will write the evaluation report), and providing at least one representative from USDOL/ILAB to participate on the evaluation team, when appropriate. USDOL/ILAB may choose to perform additional evaluations as appropriate.
• Have the right, at all reasonable times, to review all documents pertaining to the project, participate on field missions (including monitoring and evaluation missions), and to discuss administrative and technical issues pertaining to the project with the Grantee.
Following the award of the grant(s), the Grantee(s) shall:
• Establish the institutional and management systems and means necessary to provide and monitor the delivery of services and distribute wages and material effectively.
• If USDOL determines that it is necessary, travel to the field with USDOL and other technical experts for a project design mission before finalizing the project design and the Project Document. The Grantee(s) shall bear the financial costs for having its representative(s) participate on the project design mission.
• Assist in project evaluations, including reviewing and providing comments on the evaluation Terms of Reference (TORs) drafted by USDOL and evaluation reports written by the lead evaluator. If invited to participate on an evaluation mission by USDOL, the Grantee(s) shall bear the financial costs for having a representative of the Grantee(s) participate on an evaluation team (
• Submit trip reports to USDOL within fourteen (14) calendar days of project-related travel. If the implementing partner travels with a USDOL staff member, the implementing organization will submit a draft trip report to the staff member within fourteen (14) calendar days of project-related travel for comments. The format for the trip report will be provided by USDOL.
• Inform USDOL/ILAB at least one (1) month prior to scheduling any major public events or ceremonies regarding the project.
• Submit to USDOL all media-related and educational materials developed by it or its sub-contractors under this Grant(s), including relevant press releases, for use in this project before they are reproduced, published, or used. The Grantee(s) must consult with USDOL to ensure that materials are compatible with USDOL materials relating to its International Cooperation Program. USDOL considers brochures, pamphlets, videotapes, slide-tape shows, curricula, and any other training materials used in the project to be educational materials. USDOL will review materials for technical accuracy. USDOL will also review training curricula and purchased training materials for accuracy before they are used. The Grantee(s) must obtain prior approval from the Grant Officer for all materials developed or purchased under this grant. All materials produced by Grantee(s) must be provided to USDOL in digital format for possible publication on the Internet by USDOL.
The Grant Officer must approve candidates for all key personnel positions. USDOL's Grant Officer's Technical Representative (GOTR) shall review candidates' qualifications and provide recommendations to the Grant Officer regarding the selection of candidates for all key personnel positions. The Grantee(s) shall submit résumés,
Key personnel may only be changed with the approval of the Grant Officer. The Grantee(s) shall not substitute or replace key personnel unless new personnel are at least equal in qualifications to those personnel who are replaced. If a need to find new key personnel arises, the Grantee(s) shall notify the GOTR as soon as the need becomes known. If the Grant Officer is unable to approve the personnel change, he/she reserves the right to terminate the grant.
Organizations may apply for funding in partnership with other organizations, but in such a case, a lead organization must be identified. Use of sub-contractors is subject to Federal laws and regulations, including OMB circulars requiring free and open competition for procurement transactions.
The Grant Officer must approve all sub-contractors. USDOL's Grant Officer's Technical Representative (GOTR) shall review candidates' qualifications and provide recommendations to the Grant Officer regarding the selection of candidates for all sub-contractors. The lead organization shall submit a list of previous projects implemented by the proposed sub-contractor, along with a description of qualifications, re
Except as specifically provided, USDOL/ILAB acceptance of a proposal and
All reports (see Appendix B) are due no later than 30 days after the end of a fiscal quarter and shall be submitted in English. USDOL/ILAB and the Grantee(s) should work together to resolve any issues within 30 days of receipt of a report.
The Grantee(s) shall submit financial reports on a quarterly basis. The first reporting period shall end on the last day of the fiscal quarter (December 31, March 31, June 30, or September 30) during which the grant was signed.
The Grantee(s) shall use Standard Form (SF) 269A,
If the Grantee(s) uses the U.S. Department of Health and Human Services Payment Management System (HHS PMS), they shall also send USDOL copies of the PSC 272 that it submits to HHS, on the same schedule. Otherwise, the Grantee(s) shall submit Standard Form (SF) 272,
Financial reports are due within 30 days of the end of the reporting period (
After signing the agreement, the Grantee(s) shall submit progress reports to USDOL/ILAB at the end of each fiscal quarter. The first reporting period shall end on the last day of the fiscal quarter (December 31, March 31, June 30, or September 30) during which the Grant was signed. Between reporting dates, the Grantee(s) shall also immediately inform USDOL/ILAB of significant developments and/or problems affecting the organization's ability to accomplish work.
The Grantee(s) shall submit two types of progress reports according to the standardized format used by USDOL/ILAB:
Status Reports compare actual and planned activities during the reporting period, which consists of one quarter (January-March and July-September). Its purpose is to provide an update on the Workplan, problems/solutions, major achievements, or modifications. The Status Report should be brief and include an attached project Workplan indicating the status of Workplan activities: “completed,” “on schedule,” “delayed,” “cancelled.” The body of report should provide a summary explanation of any deviation from the Workplan and recommended actions.
Status Reports are due within 30 days of the end of the reporting period (
Technical Progress Reports provide information on how the project is progressing in achieving its stated objectives. Technical Progress Reports will be based on the project's stated objectives, indicators, and Performance Monitoring Plan (PMP) and will provide both quantitative and qualitative information and a narrative assessment of performance for the preceding six-month period (January—June and July—December). Data measuring achievement of the project's indicators will be attached to the narrative, which will provide a composite overview of progress, trends, problems, new proposals, lessons learned, and expenditures. The body of the Technical Progress Report should be 2-3 pages in length, stressing major points related to strategy.
Technical Progress Reports are due within 30 days of the end of the reporting period (
All reports shall cite the assigned grant number. The Grantee(s) shall submit one hard copy of all financial reports to each of the following persons:
The Grantee(s) shall submit one hard copy of all technical reports to each of the following persons:
Lawrence Kuss, Grant Officer, Procurement Services Center, U.S. Department of Labor 200 Constitution Ave., NW., Room N-5416, Washington, DC 20210.
The Grantee(s) shall submit a quarterly travel plan to the GOTR. The plan shall include the following information for all individuals traveling for the Grantee(s) to support activities covered by this grant:
• Name of the person(s) who will be traveling;
• Destination(s);
• Dates of travel;
• Purpose of travel—what they will be doing and why.
The Grantee(s) should submit the quarterly travel plan no later than four weeks prior to the start of each subsequent fiscal quarter (
All travelers should submit finalized travel details to the GOTR no later than 4 weeks prior to the desired departure date. If any major holiday occurs during those 4 weeks, travelers should submit finalized details earlier.
Individuals are not permitted to travel until USDOL/ILAB has received country clearance from the State Department (via e-mail or cable) or has received written authorization (including by e-mail) from the GOTR. This also applies to expatriates living abroad who go on personal or home leave: Although they do not need clearance to enter the U.S., they do need clearance to re-enter the country in which they are stationed.
While travelers may cancel trips at any time, USDOL/ILAB will not permit any amendments to a clearance cable (
In all circumstances, the following shall be displayed on printed materials: “Preparation of this item was funded by the United States Department of Labor under Grant No. [insert the appropriate Grant number].”
When issuing statements, press releases, requests for proposals, bid solicitations, and other documents describing projects or programs funded in whole or in part with Federal money, all Grantees receiving Federal funds must clearly state:
• The percentage of the total costs of the program or project, which will be financed with Federal money;
• The dollar amount of Federal funds for the project or program; and
• The percentage and dollar amount of the total costs of the project or program that will be financed by non-governmental sources.
In consultation with ILAB, the Grantee(s) will acknowledge USDOL's role in one of the following ways:
• The USDOL logo may be applied to USDOL-funded material prepared for world-wide distribution, including posters, videos, pamphlets, research documents, national survey results, impact evaluations, best practice reports, and other publications of global interest. The Grantee(s) must consult with USDOL on whether the logo may be used on any such items prior to final draft or final preparation for distribution. In no event shall the USDOL logo be placed on any item until USDOL has given the Grantee written permission to use the logo on the item.
• All documents should include the following notice: “This document does not necessarily reflect the views or policies of the U.S. Department of Labor, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”
Grantees, which may include faith-based organizations, will be subject to applicable Federal laws (including provisions of appropriations law) and the applicable Office of Management and Budget (OMB) Circulars. Determinations of allowable costs will be made in accordance with the applicable Federal cost principles,
• 29 CFR part 36—Federal Standards for Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.
• 29 CFR part 93—New Restrictions on Lobbying.
• 29 CFR part 95—Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations, and with Commercial Organizations, Foreign Governments, Organizations Under the Jurisdiction of Foreign Governments and International Organizations.
• 29 CFR part 96—Federal Standards for Audit of Federally Funded Grants, Contracts and Agreements.
• 29 CFR part 98—Federal Standards for Government wide Debarment and Suspension (Nonprocurement) and Government-wide Requirements for Drug-Free Workplace (Grants).
• 29 CRF part 99—Federal Standards for Audits of States, Local Governments, and Non-Profit Organizations.
Sub-contracts must be awarded in accordance with 29 CFR 95.40-48. In compliance with Executive Orders 12876 as amended, 13230, 12928, and 13021 as amended, the Grantee(s) is strongly encouraged to provide subcontracting opportunities to Historically Black Colleges and Universities, Hispanic-Serving Institutions and Tribal Colleges and Universities.
Grant funds may not be encumbered/obligated by the Grantee(s) before or after the period of performance. Encumbrances/obligations outstanding as of the end of the grant period may be liquidated (paid out) after the end of the grant period. Such encumbrances/obligations may involve only commitments for which a need existed during the grant period and which are supported by approved contracts, purchase orders, requisitions, invoices, bills, or other evidence of liability consistent with the Grantee's purchasing procedures and incurred within the grant period. All encumbrances/ obligations incurred during the grant period must be liquidated within 90 days after the end of the grant period, if practicable.
USDOL, through its authorized representatives, has the right, at all reasonable times, to make site visits to review project accomplishments and management control systems and to provide such technical assistance as may be required. If USDOL makes any site visit on the premises of the Grantee or a sub-contractor(s) under this grant, the Grantee must provide and must require its sub-contractors to provide all reasonable facilities and assistance for the safety and convenience of the Government representatives in the performance of their duties. All site visits and evaluations will be performed so as not to unduly delay the work.
The closeout of a grant is the process by which a Federal grantor agency determines that all applicable administrative actions and all required work of the grant have been completed by the grantee and the grantor.
The date when all work under a grant is completed or the date in the grant award document, or any supplement or amendment thereto, on which Federal assistance ends, whichever comes first.
Disallowed costs are those charges to a grant that the grantor agency or its representative determines to not be allowed in accordance with the applicable Federal Cost Principles or other conditions contained in the grant.
Grants shall be closed out in accordance with the following procedures:
• Upon request, the Grantor shall make prompt payments to a Grantee for allowable reimbursable costs under the grant being closed out.
• The Grantee shall immediately refund to the Grantor any balance of unobligated (unencumbered) cash advanced to the Grantee that is not authorized for retention by the Grantee for use on other grants.
• Within 90 days after completion of the grant, the Grantee shall submit all financial, performance and other reports required by the Grant Officer to close out the grant. The Grant Officer may authorize extensions when requested by the grantee.
• The Grant Officer shall make a settlement for any upward or downward adjustments to the Federal share of costs after these reports are received.
• In the case of grants that include matching/in-kind contributions, the
• The Grantee shall account for any property acquired with grant funds, or received from the Government in accordance with the provisions of 29 CFR part 95.
• In the event that a final audit has not been performed prior to the closeout of the grant, the Grantor shall retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.
The performance of the Grantee will be assessed based on the timely completion of one or more deliverables that will be due to USDOL at the end of each quarter of the Grant. These deliverables should reflect the outcomes of the project that are expected to help achieve the project's objective(s). Applicants are requested to include in their proposal a project implementation plan and approach to monitor the performance of the project throughout the period of the grant. The implementation plan is to consist of a quarterly schedule of activities and list of deliverables that would be completed by the contractor each quarter. The defined list and schedule of deliverables is viewed by USDOL as a key component of the technical proposal.
USDOL will screen all applications to determine whether all required elements are present and clearly identifiable. A Technical Panel will objectively rate each complete application against the criteria described in this announcement. The panel recommendations to the Grant Officer are advisory in nature. The Grant Officer may elect to select one or more Grantees on the basis of the initial proposal submission, or the Grant Officer may establish a competitive or technically acceptable range for the purpose of selecting qualified applicants. If deemed appropriate, following the Grant Officer's call for the preparation and receipt of final revisions of proposals, the evaluation process described above will be repeated to consider such revisions. The Grant Officer will make a final selection determination based on what is most advantageous to the Government, considering factors such as panel findings, geographic presence of the applicants, and the best value to the government, cost, and other factors. The Grant Officer's determination for award under this SGA is final.
The criteria below will serve as the basis upon which submitted applications will be evaluated. Technical aspects of the application will constitute 100 points of the total evaluation. Up to five (5) additional points will be given for leveraging non-Federal resources.
In order to assist USDOL in assessing the efficient and effective allocation of project funding, the Applicant shall submit a project budget that clearly details the costs for performing all of the requirements presented in this solicitation, including producing all deliverables, reporting on implementation and progress, and monitoring progress. Applicants are reminded to budget for compliance with the administrative requirements set forth (copies of all regulations are referenced in this SGA are available at no cost, on-line, at
The technical panel will review grant applicants against the criteria listed below on the basis of 100 points.
• The extent to which the application sets forth a clear and supportable course of action to achieve increased compliance with occupational safety and health laws in Serbia through enhanced strategies for outreach, education and enforcement, introduction and application of more effective policies and procedures to carry out workplace inspections, and increased accountability of Ministry of labor staff for meeting labor law compliance targets. The Applicant will be evaluated on the clear identification and description of the specific strategy(s) the Applicant proposes to use, its effectiveness, and attainability of project objectives by the end of the grant period. (10 points)
• Demonstrated familiarity with the major issues related to the components being addressed (
• A monitoring and evaluation plan for measuring project performance that includes challenging but realistic targets and measurable, verifiable project indicators that measure achievement of project objectives and performance in project implementation. (5 points)
• A description of the applicant's approach to expending funds in the most cost-effective method possible in order to achieve the project objectives. The applicant should refer to its submitted budget in explaining how the budgeted funds will be utilized cost-effectively. In order to assist USDOL in assessing the efficient and effective allocation of project funding, the Applicant shall submit, at minimum, supporting budget information indicating how the Applicant arrived at estimating the costs of the following items/activities: Salaries and benefits for all key personnel, 2-3 key activities proposed by the Applicant under its project design, and closing the project and meeting all USDOL close-out requirements, as stated in this SGA. The Applicant will be evaluated based on the clear identification of all project costs and efficient and effective allocation of funding. The project budget should clearly demonstrate that the total amount and distribution of funds is sufficient to cover the cost of all major project activities identified by the Applicant in its proposal, management of the project, monitoring and evaluation, and project close-out and that the distribution of funds maximizes the provision of goods and/or services to project beneficiaries. This section will be evaluated in accordance with applicable Federal laws and regulations. The budget must comply
• Use of existing expertise from the recipient country in order to reduce costs and further develop local capacity. (5 points)
• Inclusion of a sustainability strategy that ensures that project improvements will continue after the project ends. (5 points)
• Submission of a schedule of quarterly deliverables that will serve to determine the level of performance of the contractor. The identification of deliverables that are presented in the proposal should be objective, verifiable, and demonstrate progress in achieving project objectives. (5 points)
• Prior experience in designing and implementing activities in developing countries, especially in Serbia, related to strategic planning, outreach and education, enforcement of workplace safety and health laws, and institution building. The application shall include information as an attachment (which will not count towards the page limit) regarding previous grants, contracts, or grants, including (a) the organization for which the work was done, (b) a contact person in that organization with his/her current phone number, (c) the dollar value of the grant, contract, or Grant for the project(s), (d) the time frame and professional effort, either directly by key personnel, by consultants, or under contractual arrangements involved in the project(s), (e) a brief summary of the work performed; and (f) a brief summary of accomplishments. (10 points)
• Clear organizational structure and management plan, illustrating experience with carrying out participatory development activities with organizations (
• Demonstration of strong financial management and internal control systems. (5 points)
• Key personnel with prior experience directly related to the proposed work, including technical and language qualifications, professional competence, relevant academic background, and demonstrated experience. Applicants shall submit a résumé for each key personnel proposed, which includes the individual's current employment status and previous work experience, including position title, duties performed, dates in position, employing organizations, and educational background. Duties must be clearly defined in terms of role performed (
• Clear management plan demonstrating the staffing requirements and other resources needed to implement the approach. (10 points)
USDOL will award up to five (5) additional rating points to applications that include non-Federal resources that significantly expand the size and scope of project-related activities. These programs will not be financed by the project, but can complement and enhance project objectives. To be eligible for the additional points, the applicant must list the resource(s), the nature, and possible activities anticipated and any partnerships, linkages, or coordination of activities, cooperative funding,
This outline is provided as a guideline. Organizations may elect a format of their choosing, subject to the requirements of this announcement.
This stated commitment will be incorporated into the text of the grant with the selected applicant(s).
Occupational Safety and Health Administration (OSHA), Labor.
Request for comment.
OSHA requests comment concerning its proposed extension of the information-collection requirements specified by its Standard on Walking-Working Surfaces (29 CFR part 1910, subpart D). This Standard applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed.
Comments must be submitted by the following dates:
You may submit comments in response to this document by (1) hard copy, (2) FAX transmission (facsimile), or (3) electronically through the OSHA webpage. Please note you cannot attach materials such as studies or journal articles to electronic comments. If you have additional materials, you must submit three copies of them to the OSHA Docket Office at the address above. The additional materials must clearly identify your electronic comments by name, date, subject and docket number so we can attach them to your comments. Because of security-related problems there may be a significant delay in the receipt of comments by regular mail. Please contact the OSHA Docket Office at (202) 693-2350 for information about security procedures concerning the delivery of materials by express delivery, hand delivery and messenger service.
The Supporting Statement for the Information Collection Request is available for downloading from OSHA's Web site at
Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The collections of information contained in the Walking-Working Surfaces standard are necessary to protect workers from the collapse of overloaded floors and the failure of defective portable metal ladders.
Paragraph 1910.22(d)(1) requires that load limits approved by the building official be marked on plates supplied and securely affixed by the owner of the building, or his duly authorized agent, in a conspicuous place in each space to which they relate. The plates are not to be removed or defaced but, if lost, removed, or defaced, they shall be replaced by the owner or his agent.
Under paragraph 1910.26(c)(2)(vii), ladders having defects are to be marked and taken out of service until repaired by either the maintenance department or the manufacturer.
Paragraph 1910.28(e)(3) requires that outrigger scaffolds designed by a registered professional engineer be constructed and erected in accordance with table D-16 of this section. A copy of the detailed drawings and specifications showing the sizes and spacing of members shall be kept on the job.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information-collection requirements are necessary for the proper performance of the Agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information-collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
In addition, the Agency specifically requests information on the number of portable metal ladders that become defective in one year. Also, the Agency is interested in knowing whether outrigger scaffolds are used in general industry.
OSHA proposes to extend the Office of Management and Budget's (OMB) approval of the collection-information requirements specified by the Standard on Walking-Working Surfaces (29 CFR part 1910, subpart D). The Agency will summarize the comments submitted in response to this notice, and will include this summary in its request to OMB to extend the approval of these information-collection requirements.
John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506), and Secretary of Labor's Order No. 5-2002 (67 FR 65008).
Notice is hereby given of the date and location of the next meeting of the Federal Advisory Council on Occupational Safety and Health (FACOSH), established under Section 1-5 of Executive Order 12196 on February 6, 1980, published in the
Agenda items will include:
Written data, views, or comments may be submitted, preferably with 20 copies, to the Office of Federal Agency Programs at the address provided below. All such submissions, received by July 10, 2003, will be provided to the Federal Advisory Council members and will be included in the record of the meeting. Anyone wishing to make an oral presentation should notify the Office of Federal Agency Programs by the close of business July 10, 2003. The request should state the amount of time desired, the capacity in which the person will appear, and a brief outline of the content of the presentation. Persons who request the opportunity to address the Federal Advisory Council may be allowed to speak, as time permits, at the discretion of the Chairperson. Individuals with disabilities who wish to attend the meeting should contact Tom Marple at the address indicated below, if special accommodations are needed.
For additional information, please contact Thomas K. Marple, Director, Office of Federal Agency Programs, U.S. Department of Labor, Occupational Safety and Health Administration, Room N-3622, 200 Constitution Avenue, NW., Washington, DC 20210, telephone number (202) 693-2122. An official record of the meeting will be available for public inspection at the Office of Federal Agency Programs.
National Aeronautics and Space Administration.
Notice of meeting.
The National Aeronautics and Space Administration announces a meeting of the NASA Biological and Physical Research Advisory Committee, Space Station Utilization Advisory Subcommittee (SSUAS).
Monday, July 28, 2003, 8 a.m. to 5 p.m., and Tuesday, July 29, 2003, 8 a.m. to 5 p.m., and July 30, 2003, 8 a.m. to 12 noon.
Brook Lodge Hotel and Conference Center, 6535 N. 42nd Street, Augusta, MI 49012.
Dr. Neal Pellis, Code U, National Aeronautics and Space Administration, Houston, TX 77058, (281) 483-8388.
The meeting will be open to the public up to the seating capacity of the room. Advance notice of attendance to the Executive Secretary is requested.
The agenda for the meeting will include the following topics:
• ISS Program Status/Plans.
• Research Integrated Plans.
• OBPR Report.
• NASA Strategic Plan and the ISS.
• ISS Program Scientist Report.
• Payloads Office Report.
• Integrated Hardware availability on the ISS.
• Science Officer Report “ Expedition 6.
• Payload Training Schedule.
• Research and Operations Report on Increment 7.
• Telecon with Investigators.
• Rosaviakosmos Report.
• European Space Agency Report.
• NASDA/GOJ Report.
• CSA Report.
• IFSUSS Discussion.
• ISS Milestones to Support Space Architect's Plans.
• Re-invention and the Science Risk.
• ISS Research Institute and the ISS Research.
• CAM and its Contents.
• Attached Payloads Program.
• The IRB Process.
• Visiting Cargo Vehicles “ Progress.
• Executive Development of Recommendations.
• Executive SSUAS/IFSUSS and Code U Retreat.
• SSUAS/IFSUSS Recommendations to BPRAC.
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency has submitted to OMB for approval the information collection described in this notice. The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995.
Written comments must be submitted to OMB at the address below on or before July 31, 2003 to be assured of consideration.
Comments should be sent to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: Ms. Brooke Dickson, Desk Officer for NARA, Washington, DC 20503.
Requests for additional information or copies of the proposed information collection and supporting statement should be directed to Tamee Fechhelm at telephone number (301) 837-1694 or fax number (301) 837-3213.
Pursuant to the Paperwork Reduction Act of 1995 (Public Law 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. NARA published a notice of proposed collection for this information collection on January 16, 2003 (68 FR 2367 and 2368). We received comments from seven members of the public. Following is a summary of the comments and a discussion of the changes that we made to the proposed information collection.
Some members from the public expressed concern about the use of the word “professional” to characterize persons on the listing. We have replaced the term “professional researcher” with “independent researcher” on the application form, the listing, and related Web pages to more accurately describe the researchers' status. The application form, listing, and related Web pages also clearly state that inclusion on the listing may not be viewed or advertised as an endorsement by NARA. In addition, we have added a disclaimer to the related Web pages that makes clearer that neither the independent researcher's level of expertise nor his or her fee schedule are eligibility factors for inclusion on the listing.
Several members of the public expressed concerns that the proposed collection did not make clear that this listing is limited to individuals available to do research in person at NARA facilities. On the application form, item 1 of the conditions for inclusion on the listing provides that stipulation, as does each of the related Web pages.
Several members of the public recommended the inclusion of more information about the independent researcher's level of expertise, skills, and research specialties (
A few members of the public requested clarification of the conditions and procedures for remaining on the listing. These issues included the process for updating information on the listing and the penalties for inappropriate use of NARA facilities by independent researchers. Paragraphs 5 and 6 of the conditions on the application form for inclusion on the independent researcher listing have been amended to provide more detail about the process for updating information on the listing and the consequences of independent researchers' violation of NARA regulations of use of our facilities.
A few members of the public requested clarification of the status of existing unofficial listings and two separate official special media reproduction services vendors lists. Distribution of the new independent researchers listing will render all previous unofficial listings obsolete and unusable. We will continue to disseminate the special media reproduction services vendors listings, which provide information about a number of private vendors who supply digital, photographic, and oversize electrostatic reproductions of still pictures, maps, plans, drawings, and aerial photographs; and copies of film and broadcast quality videotapes in our holdings. Individuals on those two listings who also offer independent research services will be free to participate in the proposed independent researchers listing.
NARA has submitted the described information collection to OMB for approval.
In response to this notice, comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of information technology. In this notice, NARA is soliciting comments concerning the following information collection:
July 3, 2003, 2 p.m.-3:30 p.m., Open Session.
The National Science Foundation, 4201 Wilson Boulevard, Room 110, Arlington, VA 22230,
This meeting will be open to the public.
NSB Office, (703) 292-7000.
Discussion of S&E Indicators, 2004 Chapter 2, Higher Education in S&E.
Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, an information collection unless it displays a currently valid OMB control number.
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A copy of the final supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide Web site: (
Comments and questions should be directed to the OMB reviewer by July 31, 2003. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Bryon P. Allen, Office of Information and Regulatory Affairs (3150-0036), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be submitted by telephone at (202) 395-3087.
The NRC Clearance Officer is Brenda Jo. Shelton, 301-415-7233.
Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
1. Type of submission, new, revision, or extension: Revision.
2. The title of the information collection: 10 CFR part 40, Domestic Licensing of Source Material; and NRC Form 484, Detection Monitoring Data Report; and NRC Form 244, Registration Certificate—Use of Depleted Uranium under General License.
3. The form number if applicable: NRC Form 484 and NRC Form 244.
4. How often the collection is required: Reports required under 10 CFR part 40 are collected and evaluated on a continuing basis as events occur. There is a one-time submittal of information to receive a license. Renewal applications need to be submitted every 5 to 10 years. Information in previous applications may be referenced without being resubmitted. In addition, recordkeeping must be performed on an on-going basis. NRC Form 484 is submitted biannually to report ground-water data necessary to
NRC Form 244 is submitted when depleted uranium is received or transferred under general license.
5. Who will be required or asked to report:
10 CFR part 40: Applicants for and holders of NRC licenses authorizing the receipt, possession, use, or transfer of radioactive source and byproduct material.
NRC Form 484: Uranium recovery facility licensees reporting ground-water monitoring data pursuant to 10 CFR 40.64.
NRC Form 244: Persons receiving, possessing, using, or transferring depleted uranium under the general license established in 10 CFR 40.25(a).
6. An estimate of the number of annual responses:
10 CFR part 40: 869 responses (386 for NRC licensees and 483 for Agreement State licensees).
NRC Form 484: Included in 10 CFR part 40 above.
NRC Form 244: 60 responses (20 for NRC licensees and 40 for Agreement State licensees).
7. The estimated number of annual respondents:
10 CFR part 40: 271 licensees (99 for NRC licensees and 172 for Agreement State licensees).
NRC Form 484: Included in 10 CFR part 40 above.
NRC Form 244: 60 licensees (20 for NRC licensees and 40 for Agreement State licensees).
8. An estimate of the total number of hours needed annually to complete the requirement or request:
10 CFR part 40: 59,367 total hours (21,886 for NRC Licensees (16,182 hours for reporting and 5,704 hours for recordkeeping) and (37,481 for Agreement State Licensees (28,083 hours for reporting and 9,398 hours for recordkeeping).
NRC Form 484: Included in 10 CFR part 40 above.
NRC Form 244: 60 hours (20 hours for NRC licensees and 40 hours for Agreement State licensees) for reporting requirements.
9. An indication of whether Section 3507(d), Pub. L. 104-13 applies: N/A.
10. Abstract: 10 CFR part 40 establishes requirements for licenses for the receipt, possession, use and transfer of radioactive source and byproduct material. NRC Form 484 is used to report certain groundwater monitoring data required by 10 CFR part 40 for uranium recovery licensees. NRC Form 244 is used to report receipt and transfer of depleted uranium under general license, as required by 10 CFR part 40. The application, reporting and recordkeeping requirements are necessary to permit the NRC to make a determination on whether the possession, use, and transfer of source and byproduct material is in conformance with the Commission's regulations for protection of public health and safety.
A copy of the final supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC Worldwide Web site:
Comments and questions should be directed to the OMB reviewer listed below by July 31, 2003. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Bryon Allen, Office of Information and Regulatory Affairs (3150-0020 and 3150-0031), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be submitted by telephone at (202) 395-3087.
The NRC Clearance Officer is Brenda Jo. Shelton, 301-415-7233.
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (the Commission) has granted the request of STP Nuclear Operating Company (the licensee) to withdraw its May 23, 2002, application for proposed amendments to Facility Operating License No. NPF-76 and Facility Operating License No. NPF-80 for the South Texas Project (STP), Units 1 and 2, respectively. STP, Units 1 and 2 are located in Matagorda County, Texas.
The proposed amendments would have revised the facility Technical Specifications 3.7.1.5 and 3.7.1.7 to extend the allowable outage times (AOTs) for main steam line isolation valves, extend the AOT for the main feedwater isolation valves, and allow more than one main feedwater isolation valves to be inoperable.
The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the
For further details with respect to this action, see the application for amendment dated May 23, 2002, and the licensee's letter dated June 17, 2003, which withdrew the application for license amendments. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The U. S. Nuclear Regulatory Commission (NRC) is considering
The NRC has reviewed the results of the final survey of the Merck & Company facility in Elkton, Virginia, and will perform a confirmatory survey prior to termination of the license. Merck & Company was authorized by the NRC from January 10, 1958 until the present to use radioactive materials for research and development purposes at the site. In 2002, Merck & Company ceased operations with licensed materials at the Elkton, Virginia site, and requested that the NRC terminate the license. Merck & Company has conducted surveys of the facility and determined that the facility meets the license termination criteria in subpart E of 10 CFR part 20. The NRC staff has evaluated Merck & Company's request and the results of the surveys, and has developed an EA in accordance with the requirements of 10 CFR part 51. Based on the staff evaluation, the conclusion of the EA is a Finding of No Significant Impact on human health and the environment for the proposed licensing action.
Merck & Company has requested release for unrestricted use their building located at 2778 South Eastside Highway in Elkton, Virginia as authorized for use by NRC License No. 45-03302-01. License No. 45-03302-01 was issued on January 10, 1958, and amended periodically since that time. NRC-licensed activities performed at the Elkton, Virginia site were limited to laboratory procedures typically performed on bench tops and in hoods. No outdoor areas were affected by the use of licensed materials. Licensed activities ceased completely in September 2002, and the licensee requested release of the facility for unrestricted use. Based on the licensee's historical knowledge of the sites and the condition of the facility, the licensee determined that only routine decontamination activities, in accordance with licensee radiation safety procedures, were required. A decommissioning plan was not required to be submitted to the NRC. The licensee surveyed the facility and provided documentation that the facility meets the license termination criteria specified in subpart E of 10 CFR part 20, “Radiological Criteria for License Termination.” NRC staff will perform a confirmatory survey prior to termination of the license.
The proposed action is to terminate NRC Radioactive Materials License No. 45-03302-01 and release the licensee's facility at 2778 South Eastside Highway in Elkton, Virginia, for unrestricted use. By letters dated September 23, 2002 and March 17, 2003, Merck & Company provided survey results which demonstrate that the Elkton, Virginia facility is in compliance with the radiological criteria for license termination in subpart E of 10 CFR part 20, “Radiological Criteria for License Termination.”
The purpose of the proposed action is to release Merck & Company's facility located at 2778 South Eastside Highway in Elkton, Virginia for unrestricted use and termination of the license. NRC is fulfilling its responsibilities under the Atomic Energy Act to make a decision on a proposed license amendment for release of facilities for unrestricted use that ensures protection of the public health and safety and environment.
The only alternative to the proposed action of terminating the license and release of the Elkton, Virginia facility for unrestricted use is no action. The no-action alternative is not acceptable because it will result in violation of NRC's Timeliness Rule (10 CFR 30.36), which requires licensees to decommission their facilities when licensed activities cease. The licensee does not plan to perform any activities with licensed materials at this location. Maintaining the area under a license would also reduce options for future use of the property.
The NRC staff has reviewed the surveys performed by Merck & Company to demonstrate compliance with the 10 CFR 20.1402 license termination criteria. Based on its review, the staff has determined that the affected environment and environmental impacts associated with the decommissioning of Merck & Company's facility are bounded by the impacts evaluated by the “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Facilities” (NUREG-1496). The staff also finds that the proposed release for unrestricted use of the Merck & Company facility is in compliance with 10 CFR 201402, “Radiological Criteria for Unrestricted Use.” The NRC has found no other activities in the area that could result in cumulative impacts.
This Environmental Assessment was prepared entirely by the NRC staff. The U. S. Fish and Wildlife Service was contacted for comment and responded by letter dated January 16, 2003, with no opposition to the action. The Virginia Department of Historic Resources was also contacted and had no comment.
Based on its review, the NRC staff has concluded that the proposed action complies with 10 CFR part 20. NRC has prepared this EA in support of the proposed license termination to release the Merck & Company facility located at 2778 South Eastside Highway in Elkton, Virginia for unrestricted use. On the basis of the EA, NRC has concluded that the environmental impacts from the proposed action are not expected to be significant and has determined not to prepare an environmental impact statement for the proposed action.
Orysia Masnyk Bailey, Materials Licensing/Inspection Branch 1, Division of Nuclear Materials Safety, Health Physicist.
1. NRC License No. 45-03302-01 inspection and licensing records.
2. Merck & Company. “Request for Declaration of Decommissioned Status” Letter and supporting documentation from D. Kremer to NRC dated September 23, 2002. (ML022680313)
3. Merck & Company. “Additional Information Concerning Request Dated September 23, 2003” Letter and supporting documentation from D. Kremer to NRC dated March 17, 2003.(ML030830011)
4. Title 10 Code of Federal Regulations part 20, subpart E, “Radiological Criteria for License Termination.”
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6. United States Department of the Interior. “Merck & Company Elkton Facility, Termination of Byproduct
Based upon the environmental assessment, the staff concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the staff has determined that preparation of an environmental impact statement is not warranted.
The references listed above are available for public inspection and may also be copied for a fee at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. These documents are also available for public review through ADAMS, the NRC's electronic reading room, at:
For the Nuclear Regulatory Commission.
Weeks of June 30, July 7, 14, 28, August 4, 2003.
Commissioners' Conference Room, 1155 Rockville Pike, Rockville, Maryland.
Public and closed.
There are no meetings scheduled for the week of July 7, 2003.
There are no meetings scheduled for the week of July 14, 2003.
There are no meetings scheduled for the week of July 21.
There are no meetings scheduled for the week of July 28, 2003., 2003.
There are no meetings scheduled for the week of August 4, 2003.
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: David Louis Gamberoni (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no long wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Postal Service.
Notice.
The United States Postal Service has developed the NCOA
July 1, 2003.
Contact the Move Update Department—NCOA
Mailers will be able to process a mailing list using NCOA
This product enables the Postal Service to make available a pre-mailing address correction service in a format that is not a clear text address list, but is instead a mathematical formulation. As a result, mailers can potentially integrate the NCOA
As with the Postal Service's current NCOA and FASTforward® products, in order for a mailer to obtain updated address information from the NCOA
Improving the security and quality of mailer address information benefits all parties, including the customer, the mailer and the Postal Service. Customers benefit from the added security of their address information, and the increased accuracy of delivery, so that mail is not delivered to the wrong address. A mailer benefits by managing correct address information for its customers, reducing mailing costs and other significant business costs associated with handling inaccurate address information. The Postal Service benefits from reduced volumes of undeliverable-as-addressed mail and decreased processing and handling costs for such mail. By creating and licensing the NCOA
Commencing on July 1, 2003, the Postal Service will begin accepting applications for new NCOA
The Postal Service will license the NCOA
A Full Service Provider is a licensee that uses the NCOA
A Limited Service Provider is a licensee that uses the NCOA
The End-User Mailer is a licensee that uses the NCOA
The Postal Service may adjust all license fees in all categories after the first year of the license agreement.
In order for any category of licensee to use the NCOA
The initial licensing term for all categories of the NCOA
During the initial licensing term and until the discontinuation of NCOA, which is also on September 30, 2004, NCOA licensees who apply and are authorized, in addition to their NCOA license fees, will pay a transition base annual license fee of $25,000.00 to obtain the NCOA
Different from NCOA, FASTforward® MLC will be supported an additional year until September 30, 2005. However, the transition licensing fees noted below shall only apply to the initial licensing term of the NCOA
During the initial licensing term, FASTforward® MLC licensees who apply and are authorized to be Limited Service Providers shall, in addition to their FASTforward® MLC fees, pay a transition base annual license fee of $5,000.00 to use the NCOA
During the initial licensing term, FASTforward® MLC licensees who apply and are authorized to be End-User Mailers shall, in addition to their FASTforward® MLC fees, pay a transition base annual license fee of $2,500.00 to use the NCOA
After the expiration of the initial NCOA
The Postal Service will treat existing NCOA and FASTforward® MLC licensees that do not apply for NCOA
The above transition examples illustrate how license fees would be handled when a current licensee applies for an NCOA
Software developers may apply to provide NCOA
Software developers must execute a separate commercial sale license agreement with the Postal Service in order to market its NCOA
Notice is hereby given that the following filings 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 July 18, 2003 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 July 18, 2003, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Energy East Corp. (“Energy East”), located at P.O. Box 12904 Albany, New York 12212-2904, a registered holding company under the Act, has filed an application under section 13(b) and rules 88, 90, and 91 under the Act. Energy East proposes to organize a second wholly owned subsidiary service company called Energy East Shared Services Corporation (“Shared Services”) that will be a Delaware corporation.
Currently, Energy East has a Commission authorized service company for the Energy East holding company system, Energy East Management Corporation (“EEMC”). EEMC has a national and regional focus for its activities and will be principally engaged in general management and providing strategic services to the Energy East System after Shared Services is approved. EEMC's services will then include: overall corporate supervision of the Energy East system, strategic advice, investor relations, corporate finance, corporate governance and related activities associated with maintaining a public holding company that is a regional energy services provider, such as corporate financial consolidation and reporting.
In contrast, the second service company, Shared Services, proposes to provide the Energy East system with a variety of administrative and operations services. The services provided by Shared Services would be provided to the public utility subsidiary companies, listed below (“Utility Subsidiaries”), but a limited number of services in the human resources area such as payroll processing will be provided to EEMC and Energy East, where appropriate and consistent with the economical and efficient performance of services at cost. Shared Service's services may include: supply chain; information technology; accounting; human resources; customer service; payroll; engineering; regulatory services; and numerous other day today operating and administrative services that all Utility Subsidiaries require to operate. Energy East states that it is possible, that as functions are transitioned to Shared Services some services may be performed, for a limited period of time, by Utility Subsidiary personnel until the positions are formally transferred to Shared Services. To the extent that rule 87(a)(3) does not apply, Energy East requests, on behalf of the Utility Subsidiaries, authority for the Utility Subsidiaries to provide services to Shared Services.
Energy East holds direct or indirect interests in the following Utility
• New York State Electric & Gas Corporation, a New York corporation and a wholly-owned direct subsidiary of RGS Energy Group, Inc., which purchases, transmits and distributes electricity and purchases, transports and distributes natural gas in parts of New York;
• RG&E, a New York corporation and a wholly-owned subsidiary of RGS, which generates, purchases, transmits and distributes electricity and purchases, transports and distributes natural gas in parts of New York;
• The Southern Connecticut Gas Company, a Connecticut corporation and a wholly-owned subsidiary of Connecticut Energy, which is engaged in the retail distribution and transportation of natural gas in parts of Connecticut;
• Central Maine Power Company, a Maine corporation and a public utility holding company exempt from all provisions of the Act except Section 9(a)(2), by order issued under Section 3(a)(2), the common stock of which is wholly-owned by CMP Group, which is primarily engaged in purchasing, transmitting and distributing electricity in Maine;
• Connecticut Natural Gas Corporation, a Connecticut corporation and a wholly-owned subsidiary of CTG Resources, which is primarily engaged in the retail distribution and transportation of natural gas to parts of Connecticut; and
• The Berkshire Gas Company, a Massachusetts corporation and a wholly-owned subsidiary of Berkshire Energy, which is engaged in the sale and distribution of natural gas in western Massachusetts;
• Maine Natural Gas Corporation, a Maine corporation which distributes gas in Maine and which is a wholly-owned subsidiary of Energy East Enterprises, Inc., a Maine corporation, a wholly-owned subsidiary of Energy East and a public utility holding company exempt from all provisions of the Act except Section 9(a)(2), by order issued under section 3(a)(1) of the Act.
Energy East also owns indirect interests in the following public utility companies: MEPCo, a Maine corporation, which owns and operates a 345kV transmission interconnection between Maine and New Brunswick, Canada international border at Orient, Maine. Central Maine Power presently owns a 78.3% voting interest in MEPCo with the remaining interests owned by two other Maine utilities; NORVARCO, a Maine corporation, which holds a 50% general partnership interest in Chester SVC Partnership, a general partnership which owns a static var compensator located in Chester, Maine, adjacent to MEPCo's transmission interconnection. NORVARCO is presently a wholly-owned subsidiary of Central Maine Power.
Shared Services will be a wholly-owned direct subsidiary of Energy East. Shared Services capitalization will consist of 200 shares of common stock, par value $.01 per share. Initially, Shared Services working capital needs will be met through intercompany borrowings from Energy East pursuant to rule 52(b). Shared Services proposes to provide the companies in the Energy East system with a variety of administrative and operations services. Shared Services' activities would be conducted in accordance with service agreements (“Service Agreements”) that Shared Services will enter into with each of the companies that it serves.
The presidents of each of the Utility Subsidiaries will serve on the Board of Directors of Shared Services, in addition to other persons as may be elected from time to time. Shared Services will be staffed by employees who will be transferred over time from other Energy East system companies or who will be hired externally. The decision to move positions from the Utility Subsidiaries to Shared Services will be made function by function and position by position with a view towards maximizing system wide efficiency. Energy East, states the determinative factor whether a position is moved to the Shared Services payroll will be whether the employee in that position would spend the majority of his or her time on group-wide activities (and allocate his/her time between a number of companies) or company-specific activities (and allocate virtually all of his/her time to a single company). If the former, that position would generally be transferred to Shared Services. As a general rule, the individual system companies will continue to perform services that can benefit from individualized application at the company level, with Shared Services performing functions that can be more economically and efficiently performed in a centralized manner. To the extent that employees of system companies other than Shared Services are collecting data or information for use by Shared Services, management will provide the necessary direction to other system company employees and oversight as to the functions they perform to ensure proper coordination and efficient integration of the Energy East system.
The Service Agreements will provide methodologies to ensure that all client companies pay to Shared Services the cost of all services, computed in accordance with the applicable rules and regulations (including, but not limited to rules 90 and 91) under the Act and appropriate accounting standards. Where more than one client company is involved in, or has received benefits from, a service performed by Shared Services, the Service Agreements will provide that client companies will pay their fairly allocated pro rata share in accordance with the methods set out in appendices to the Service Agreements. Thus, charges for all services provided by Shared Services to Energy East system companies will be on an “at cost” basis as determined under rules 90 and 91 under the Act.
Shared Services will maintain its accounts, cost-accounting procedures and other records in accordance with the requirements of the Commission's Uniform System of Accounts for Mutual Service Companies and Subsidiary Service Companies utilizing, however, the chart of accounts specified in the FERC Uniform System of Accounts for Public Utilities and Licensees (18 CFR part 101). Shared Services will file annual reports on Form U-13-60 in accordance with rule 94, commencing with the report for calendar year 2003.
No material change in the organization of Shared Services, the methods of allocating cost to associate companies, or in the scope or character of the services to be rendered by Shared Services, subject to section 13 of the Act, or any rule, regulation or order, shall be made unless and until Shared Services shall first have given the Commission written notice of the proposed change not less than 60 days prior to the proposed effectiveness of any such change. If, upon the receipt of any such notice, the Commission shall notify Shared Services within the 60-day period that a question exists as to whether the proposed change is consistent with the provisions of section 13 of the Act, or of any rule, regulation or order, then the proposed change shall not become effective unless and until Shared Services shall have filed with the Commission an appropriate declaration regarding such proposed change and the Commission shall have permitted such declaration to become effective.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
The Securities and Exchange Commission (“Commission”).
Notice of application for an order pursuant to Section 26 (c) of the Investment Company Act of 1940 (the “Act”) approving certain substitutions of securities.
Western-Southern Life Assurance Company (“Western-Southern”), Separate Account 1 of Western-Southern (“Western-Southern Separate Account 1”), Separate Account 2 of Western-Southern (“Western-Southern Separate Account 2,” together with Western-Southern Separate Account 1, the “Western-Southern Separate Accounts”), Integrity Life Insurance Company (“Integrity”), Separate Account I of Integrity (“Integrity Separate Account I”), Separate Account II of Integrity (“Integrity Separate Account II,” together with Integrity Separate Account I, the “Integrity Separate Accounts”), National Integrity Life Insurance Company (“National Integrity”), Separate Account I of National Integrity (“National Integrity Separate Account I”), Separate Account II of National Integrity (“National Integrity Separate Account II,” together with National Integrity Separate Account I, the “National Integrity Separate Accounts), Columbus Life Insurance Company (Columbus Life” and together with Western-Southern, Integrity and National Integrity, the “Insurance Companies” and each individually, an “Insurance Company”) and Separate Account 1 of Columbus Life (“Columbus Life Separate Account 1,” and together with the Western-Southern Separate Accounts, the Integrity Separate Accounts and the National Integrity Separate Accounts, the “Separate Accounts”) (collectively, the “Applicants”).
Applicants request an order approving the substitution of shares of (i) the Touchstone Money Market Fund for shares of the Fidelity VIP Money Market Portfolio and (ii) the Putnam VT International Equity Fund (formerly the Putnam VT International Growth Fund) for the Touchstone International Equity Fund (each a “Substitution” collectively the “Substitutions”).
The application was filed on March 4, 2003 and was amended and restated on June 19, 2003.
An order granting the application will be issued unless the commission orders a hearing. Interested persons may request a hearing by writing to the Secretary of the Commission and serving Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on July 18, 2003 and should be accompanied by proof of service on Applicants, in the form of an affidavit, or for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Secretary of the Commission.
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants: G. Stephen Wastek, Esq., Integrity Life Insurance Company, 515 West Market Street, Louisville, Kentucky 40202, Elisabeth A. Dahl, Esq., Western-Southern Life Assurance Company, 400 Broadway, Cincinnati, Ohio 45202 and Robert N. Hickey, Esq., Sullivan & Worcester LLP, 1666 K Street, NW., Washington, DC 20006.
H. Yuna Peng, Attorney, at (202) 942-0676, or Lorna J. MacLeod, Branch Chief, at 202-942-0670, Office of Insurance Products, Division of Investment Management.
The following is a summary of the application. The complete application may be obtained for a fee from the Public Reference Branch of the Commission, 450 Fifth Street, NW., Washington, DC 20549 (tel. (202) 942-8090).
1. Western-Southern is a stock life insurance company organized under the laws of the State of Ohio. It is a wholly-owned subsidiary of The Western and Southern Life Insurance Company (“WSLIC”). WSLIC is a wholly-owned subsidiary of Western-Southern Mutual Holding Company, a mutual holding company organized under the laws of the State of Ohio in 2000.
2. Integrity is a stock life insurance company organized under the laws of Ohio. Integrity is an indirect wholly-owned subsidiary of WSLIC.
3. National Integrity is a stock life insurance company organized under the laws of New York. National Integrity is a direct wholly-owned subsidiary of Integrity and an indirect wholly-owned subsidiary of WSLIC.
4. Columbus Life is a stock life insurance company organized under the laws of the State of Ohio. It is a wholly-owned subsidiary of WSLIC.
5. Western-Southern Separate Account 1 was established under Ohio law in 1992. Western-Southern Separate Account 1 is registered under the Act as a unit investment trust and is used to fund variable annuity contracts issued by Western-Southern. Two variable annuity contracts funded by Western-Southern Separate Account 1 are affected by this application.
6. Western-Southern Separate Account 2 was established under Ohio law in 1994. Western-Southern Separate Account 2 is registered under the Act as a unit investment trust and is used to fund variable annuity contracts issued by Western-Southern. One variable annuity contract funded by Western-Southern Separate Account 2 is affected by this application.
7. Integrity Separate Account I was established under Ohio law in 1986. Integrity Separate Account I is registered under the Act as a unit investment trust and is used to fund variable annuity contracts issued by Integrity. Three variable annuity contracts funded by Integrity Separate Account I are affected by this application.
8. Integrity Separate Account II was established under Ohio law in 1992. Integrity Separate Account II is registered under the Act as a unit investment trust and is used to fund variable annuity contracts issued by Integrity. One variable annuity contract funded by Integrity Separate Account II is affected by this application.
9. National Integrity Separate Account I was established under New York law in 1992. National Integrity Separate Account I is registered under the Act as a unit investment trust and is used to fund variable annuity contracts issued by National Integrity. Three variable annuity contracts funded by National Integrity Separate Account I are affected by this application.
10. National Integrity Separate Account II was established under New York law in 1992. National Integrity Separate Account II is registered under the Act as a unit investment trust and is used to fund variable annuity
11. Columbus Life Separate Account 1 was established under Ohio law in 1998. Columbus Life Separate Account 1 is registered under the Act as a unit investment trust and is used to fund variable universal life insurance policies issued by Columbus Life. One variable universal life insurance policy funded by the Columbus Life Separate Account 1 is affected by this application. The eleven variable annuity contracts and one variable universal life insurance policy affected by this application are hereinafter collectively referred to as the “Contracts.”
12. Purchase payments under the Contracts are allocated to one or more subaccounts of the Separate Accounts (the “subaccounts”). Income, gains and losses, whether or not realized, from assets allocated to the Separate Accounts are, as provided in the Contracts, credited to or charged against the Separate Accounts without regard to other income, gains or losses of the applicable Insurance Company. The assets maintained in the Separate Accounts will not be charged with any liabilities arising out of any other business conducted by the applicable Insurance Company. Nevertheless, all obligations arising under the Contracts, including the commitment to make annuity payments or death benefit payments, are general corporate obligations of the applicable Insurance Company. Accordingly, all of the assets of each of the Insurance Companies are available to meet its obligations under its Contracts.
13. Each of the Contracts permits allocations of accumulation value to available subaccounts that invest in specific investment portfolios of underlying mutual funds. Each Contract offers between 17 and 33 portfolios with respect to the Contracts funded by the Western-Southern Separate Accounts and Columbus Life Separate Account 1 and between 56 and 61 portfolios with respect to the Contracts funded by the Integrity Separate Accounts and the National Integrity Separate Accounts. Each of the Contracts offers the Fidelity VIP Money Market Portfolio and/or the Touchstone International Equity Fund, the portfolios that are the subject of the Substitutions (the “Replaced Funds”). Before the date of the Substitutions, the Touchstone Money Market Fund, which is proposed as the replacement for the Fidelity VIP Money Market Portfolio, and the Putnam VT International Equity Fund, which is proposed as the replacement for the Touchstone International Equity Fund, (each a “Replacement Fund” and together, the “Replacement Funds”), if not already offered under the Contracts, will be added to the Contracts, as applicable. In addition, included in the Contracts are several alternative fixed interest rate options that are available to contract owners.
14. Each of the Contracts permit transfers of accumulation value from one subaccount to another subaccount at any time prior to the extended coverage period that begins at the insured's age 100 (in the case of Contracts relating to the variable insurance policy) or prior to annuitization (in the case of Contracts relating to variable annuities), subject to certain restrictions and charges described below. No sales charge applies to such a transfer of accumulation value among subaccounts.
15. The Contracts permit up to twelve free transfers during any contract year. A fee may be imposed on transfers in excess of twelve transfers in a contract year. Transfers must be at least $250, or, if less, the entire amount in the subaccount from which value is to be transferred. A variety of types of automatic scheduled transfers are permitted without charge and are not counted against the twelve free transfers in a contract year.
16. Each of the Contracts reserves the right, upon notice to contract owners and compliance with applicable law, to add, combine or remove subaccounts, or to withdraw assets from one subaccount and put them into another subaccount. This reserved right is disclosed in each Contract's prospectus.
17. Each Insurance Company, on its behalf and on behalf of the Separate Accounts set forth below, propose the following Substitutions:
18. In the case of the Substitution relating to the Touchstone Money Market Fund, shares of each class of the Replaced Fund will be liquidated and the proceeds will be used to purchase shares of the equivalent corresponding class of the Replacement Fund. Class I shares of the Touchstone Money Market Fund (which have no Rule 12b-1 fee) will be substituted for Initial class shares of the Fidelity VIP Money Market Portfolio (which have no Rule 12b-1 fee) and Class SC shares of Touchstone Money Market Fund (which have a Rule 12b-1 fee of 0.25%) will be substituted for Service Class 2 shares of the Fidelity VIP Money Market Portfolio (which have a Rule 12b-1 fee of 0.25%). In the case of the Substitution relating to the Putnam VT International Equity Fund, Class IB shares of the Putnam VT International Equity Fund (which have a Rule 12b-1 fee of 0.25%) will be substituted for Class I shares of the Touchstone International Equity Fund (which have no Rule 12b-1 fee).
19. Touchstone Advisors, Inc. (“Touchstone”), a wholly-owned subsidiary of WSLIC, serves as the investment adviser to the Touchstone International Equity Fund and to the Touchstone Money Market Fund. Fidelity Management and Research Company serves as the investment adviser to the Fidelity VIP Money Market Portfolio. Putnam Investment Management, LLC serves as investment adviser to the Putnam VT International Equity Fund. Fidelity Management and Research Company and Putnam Investment Management, LLC are unaffiliated with Touchstone and the Insurance Companies.
20. The investment objectives, policies and restrictions of the Replacement Funds are in each case substantially similar to the investment objectives, policies and restrictions of the respective Existing Funds. Set forth below is a description of the investment objectives and principal investment policies of each Existing Fund and its corresponding Replacement Fund.
21. The Fidelity VIP Money Market Portfolio is a separate series of the Variable Products Insurance Fund. The Fidelity VIP Money Market Portfolio
22. The Touchstone Money Market Fund is a separate series of the Touchstone Variable Series Trust, an open-end management investment company registered under the Act. The Touchstone Money Market Fund seeks high current income, consistent with liquidity and stability of principal. The Fund invests in high-quality money market instruments. The Fund's investments may include domestic bank obligations, including certificates of deposit, bankers' acceptances and time deposits; U.S. Government obligations issued directly by the U.S. Treasury or by agencies of the U.S. Government; short-term corporate debt obligations and taxable and tax-exempt municipal securities.
23. The Touchstone International Equity Fund is a separate series of the Touchstone Variable Series Trust. The investment objective of the Touchstone International Equity Fund is to seek long-term growth of capital through investment in equity securities of foreign issuers. The Fund seeks growth of capital. This means that the Fund looks for investments that it thinks will increase in value over a period of 3 to 5 years. Under normal circumstances, the Fund will invest at least 80% of net assets in the common stock and preferred stock of foreign companies in at least 3 countries outside of the United States. The Fund focuses on mid- and large-capitalization located in Europe, Australia and the Far East. The Fund may invest up to 15% of its assets in securities issued by companies located in emerging market countries.
24. The Putnam VT International Equity Fund is a separate series of Putnam Variable Trust, an open-end management investment company registered under the Act. The Putnam VT International Equity Fund seeks capital appreciation. It invests mainly in common stocks of companies outside the United States. The Fund's investment adviser looks for companies it believes to have favorable investment potential. For example, it may purchase stocks of companies with stock prices that reflect a value lower than that which the investment adviser places on the company. The Fund invests mainly in mid-sized and large companies, although it can invest in companies of any size. Although the Fund emphasizes investments in developed countries, it may also invest in companies located in emerging markets.
25. The Substitutions are a part of a restructuring designed to eliminate the offering of overlapping funds in the Western-Southern enterprise and those available from unaffiliated funds which also are available as investment options, with similar investment objectives and strategies and to eliminate uncompetitive products based on performance history or lack of ability to gather assets to be operationally efficient that serve as funding vehicles for insurance contracts issued by Western-Southern and its affiliates, including the Insurance Companies.
26. The Substitution of Touchstone Money Market Fund for Fidelity VIP Money Market Portfolio, which replaces an outside fund with a fund for which Touchstone acts as investment adviser also will permit Touchstone, under the Multi-Manager Order, to hire, monitor and replace sub-advisers as necessary to seek optimal performance. Before Touchstone Money Market Fund can rely on the Multi-Manager Order, the operation of the Touchstone Money Market Fund as a multi-manager fund, as described in the application for the Multi-Manager Order, will be approved, following the proposed Substitution, by a majority of the outstanding voting securities of the Touchstone Money Market Fund.
27. In addition, contract owners with sub-account balances invested in shares of the Replacement Funds will have a lower management fee and the same (or lower in the case of Class I shares) total expense ratio taking into account fund expenses and fee waivers, in the case of the Touchstone Money Market Fund, and a lower management fee and a lower total expense ratio taking into account fund expenses (including Rule 12b-1 fees) in the case of the Putnam VT International Equity Fund. With respect to the Substitution of the Class IB shares of the Putnam VT International Equity Fund for the Class I shares of the Touchstone International Equity Fund, the Insurance Companies considered the fact that the Class IB shares were already an investment option under certain contracts issued by Integrity and National Integrity. Moreover, there will be no increase in Contract fees and expenses, including mortality and expense risk fees and administration and distribution fees charged to the Separate Accounts as a result of the Substitutions. The Applicants believe that the Replacement Funds have investment objectives, policies and risk profiles that are substantially similar to the corresponding Replaced Funds to make those Replacement Funds appropriate candidates as substitutes. The Insurance Companies considered the performance history of the Replaced Funds and the Replacement Funds and determined that no contract owners would be materially adversely affected as a result of the Substitutions.
28. With respect to the Substitution relating to the Touchstone International Equity Fund, the Applicants represent that (i) the Insurance Companies will not receive, for three years from the date of the Substitution, any direct or indirect benefits from the Replacement Fund, its adviser or underwriter (or their affiliates), in connection with assets representing contract values of Contracts affected by the Substitution, at a higher rate than they had received from the Replaced Fund, its adviser or underwriter (or their affiliates), including without limitation: Rule 12b-1, shareholder service, administration or other service fees, revenue sharing or other arrangements in connection with such assets; and (ii) the Substitution and the selection of the Replacement Fund was not motivated by any financial consideration paid or to be paid to the Insurance Companies by the Replacement Fund, its adviser or underwriter or their respective affiliates.
29. The following describes the proposed Substitutions with respect to each Fund's comparative performance history and comparative fund expenses.
The Applicants represent that the historical performance of Touchstone Money Market Fund for the year ended December 31, 2002 is comparable to and for the three-month period ended April 30, 2003 and year-to-date through April 30, 2003 exceeds that of, Fidelity VIP Money Market Portfolio. Effective April 28, 2003, Touchstone Money Market Fund's management fee was reduced to 0.18%. In addition, the Fund entered into a Sponsor Agreement with Touchstone, effective April 28, 2003, whereby total annual operating expenses for the Class I shares will not exceed 0.28% and total annual operating expenses for the Class SC shares will not exceed 0.55% through December 31, 2005. The Sponsor Agreement will be amended with respect to Class SC shares prior to the Substitution to provide that total annual operating expenses will not exceed 0.54% for at least two years from the date of the Substitution. As a result of the change in management fee and the expense cap contained in the amended Sponsor Agreement, as set forth below,
Found Performance as of April 30, 2003
The Applicants represent that the historical performance of Putnam VT International Equity Fund for the one-, three-, and five-year periods ended April 30, 2003 and year-to-date through April 30, 2003 has exceeded that of the Touchstone International Equity Fund. In addition, as set forth below, the management fee and total annual operating expenses (including a Rule 12b-1 fee of 0.25%) of Putnam VT International Equity Fund, both before and after expense waivers, are lower than those of Touchstone International Equity Fund.
Fund Performance as of April 30, 2003
30. The Substitutions will take place at the Funds' relative net asset values determined on the date of the Substitutions in accordance with Section 22 of the Act and Rule 22c-1 thereunder with no change in the amount of any contract owner's cash value or death benefit or in the dollar value of his or her investment in any of the subaccounts. Accordingly, there will be no financial impact on any contract owner. The Substitutions will be effected by having each of the subaccounts that invests in the Replaced Funds redeem its shares at the net asset value calculated on the date of the Substitution and purchase shares of the respective Replacement Fund at the net asset value calculated on the same date.
31. The Substitutions will be described in supplements to the prospectuses for the Contracts (“Stickers”) filed with the Commission and mailed to contract owners. The Stickers will give contract owners notice of the Substitutions and will describe the reasons for engaging in the Substitutions. The Stickers will also inform contract owners with value allocated to a subaccount investing in the Replaced Funds that no additional amount may be allocated to those subaccounts on or after the date of the Substitutions. In addition, the Stickers will inform affected contract owners that they will have the opportunity to reallocate accumulation value prior to the Substitutions from the subaccounts investing in the Replaced Funds, and for 30 days after the Substitutions from the subaccounts investing in the Replacement Funds to subaccounts investing in other portfolios available under the respective Contracts, without the imposition of any transfer charge or limitation and without diminishing the number of free transfers that may be made in a given contract year.
32. The prospectuses for the Contracts, as supplemented by the Stickers, will reflect the Substitutions. Each contract owner will be provided with a prospectus for the Replacement Funds before the Substitutions, unless such contract owner has already received a copy of such prospectus in the ordinary course. Within five days after the Substitutions, the Insurance Companies will each send affected contract owners written notice that the Substitutions have occurred. This written notice will also reiterate to contract owners that they will have the opportunity to reallocate accumulation value for 30 days after the Substitutions from the subaccounts investing in the Replacement Funds to subaccounts investing in other portfolios available under the respective Contracts.
33. The Insurance Companies, as applicable, will pay all expenses and transaction costs of the Substitutions, including all legal, accounting and brokerage expenses relating to the Substitutions. No costs will be borne by contract owners. Affected contract owners will not incur any fees or charges as a result of the Substitutions, nor will their rights or the obligations of the Applicants under the Contracts be altered in any way. The Substitutions will not cause the fees and charges under the Contracts currently being paid by contract owners to be greater after the Substitutions than before the Substitutions. The Substitutions will have no adverse tax consequences to contract owners and will in no way alter the tax benefits to contract owners.
34. Applicants believe that their request satisfies the standards for relief of Section 26(c) of the Act, as set forth below, because the affected contract owners will have:
(i) Contract values allocated to a subaccount invested in a Replacement Fund with an investment objective and investment policies substantially similar to the investment objective and policies of the Replaced Fund; (ii) Superior or comparable performance to that of the Replaced Funds; and (iii) Current total annual operating expenses that are the same or lower than those of the Replaced Fund.
1. Section 26(c) of the Act makes it unlawful for any depositor or trustee of a registered unit investment trust holding the security of a single issuer to substitute another security for such security unless the Commission approves the substitution. The Commission will approve such a substitution if the evidence establishes that it is consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
2. The purpose of Section 26(c) is to protect the expectation of investors in a unit investment trust that the unit investment trust will accumulate shares of a particular issuer by preventing unscrutinized substitutions that might, in effect, force shareholders dissatisfied with the substituted security to redeem their shares, thereby possibly incurring either a loss of the sales load deducted from initial premium payments, an additional sales load upon reinvestment of the redemption proceeds, or both. Moreover, in the insurance product context, a contract owner forced to redeem may suffer adverse tax consequences. Section 26(c) affords this protection to investors by preventing a depositor or trustee of a unit investment trust that holds shares of one issuer from substituting for those shares the shares of another issuer, unless the Commission approves that substitution.
3. The purposes, terms and conditions of the Substitution are consistent with the principles and purposes of Section 26(c) and do not entail any of the abuses that Section 26(c) is designed to prevent.
4. Substitutions have been common where the substitute portfolio has investment objectives and policies that are similar to those of the eliminated portfolio, current expenses that are similar to or lower than those of the eliminated portfolio, and performance that is similar to or better than that of the eliminated portfolio.
5. In both cases the investment objectives and policies of the Replacement Funds are sufficiently similar to those of the corresponding Replaced Funds that contract owners will have reasonable continuity in investment expectations. Accordingly, the Replacement Funds are appropriate investment vehicles for those contract owners who have contract values allocated to the Replaced Funds.
6. The management fee and current total annual operating expenses (including Rule 12b-1 fees) are lower than those of the Replaced Fund, in the case of the Putnam VT International Equity Fund. In the case of the Touchstone Money Market Fund, the management fee is lower than that of the Replaced Fund and total annual
7. The Substitutions will not result in the type of costly forced redemption that Section 26(c) was intended to guard against and, for the following reasons, are consistent with the protection of investors and the purposes fairly intended by the Act:
(a) Each of the Replacement Funds is an appropriate portfolio to which to move contract owners with values allocated to the Replaced Funds because the portfolios have substantially similar investment objectives and policies.
(b) The costs of the Substitutions, including any brokerage costs, will be borne by the Insurance Companies and will not be borne by contract owners. No charges will be assessed to effect the Substitutions.
(c) The Substitutions will be at the net asset values of the respective shares without the imposition of any transfer or similar charge and with no change in the amount of any contract owner's accumulation value or death benefit.
(d) The Substitutions will not cause the fees and charges under the Contracts currently being paid by contract owners to be greater after the Substitutions than before the Substitution and will result in contract owners' contract values being moved to portfolios with lower current total annual operating expenses (including a lower current management fee) than the Replaced Fund, in the case of the Putnam VT International Equity Fund, and the same (or lower) total annual operating expenses (including a lower current management fee) as the current total annual operating expenses of the Replaced Fund in the case of the Touchstone Money Market Fund.
(e) Touchstone will cap total annual operating expenses of the Touchstone Money Market Fund Class I shares at 0.28% of average daily net assets through December 31, 2005 and Class SC shares at 0.54% of average daily net assets for at least two years from the date of the Substitution.
(f) All contract owners will be given notice of the Substitutions prior to the Substitutions and will have an opportunity for 30 days after the Substitutions to reallocate accumulation value among other available subaccounts without the imposition of any transfer charge or limitation and without being counted as one of the contract owner's free transfers in a contract year.
(g) Within five days after the Substitutions, the Insurance Companies will send to its affected contract owners written confirmation that the Substitutions have occurred.
(h) For those contract owners who are contract owners on the date of the Substitutions, the Insurance Companies will not increase Separate Account or Contract fees and expenses for a two-year period beginning on the date of the Substitutions.
(i) The Substitutions will in no way alter the insurance benefits to contract owners or the contractual obligations of the Insurance Companies.
(j) The Substitutions will have no adverse tax consequences to contract owners and will in no way alter the tax benefits to contract owners.
Applicants assert that for the reasons summarized above, the requested order approving the Substitution should be granted.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
On January 7, 2003, the National Association of Securities Dealers, Inc. (“NASD'or “Association”) and the International Securities Exchange, Inc. (“ISE”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) a plan, pursuant to Section 17(d) of the Securities Exchange of 1934 (“Act”)
The plan, including Amendment No. 1, was published for comment on May 21, 2003.
Section 19(g)(1) of the Act,
Section 17(d)(1) of the Act was intended, in part, to eliminate
To implement Section 17(d)(1), the Commission adopted two rules: Rule 17d-1 and Rule 17d-2 under the Act.
On its face, Rule 17d-1 deals only with an SRO's obligations to enforce broker-dealers' compliance with the financial responsibility requirements. Rule 17d-1 does not relieve an SRO from its obligation to examine a common member for compliance with its own rules and provisions of the federal securities laws governing matters other than financial responsibility, including sales practices, and trading activities and practices.
To address regulatory duplication in these other areas, on October 28, 1976, the Commission adopted Rule 17d-2 under the Act.
The Commission finds that the proposed plan is consistent with the factors set forth in Section 17(d) of the Act
This order gives effect to the plan, as amended, filed with the Commission that is contained in File S7-966. The parties shall notify all members affected by the plan, as amended, of their rights and obligations under the amended plan.
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 (the “Act”),
The Exchange proposes to extend a temporary exemption related to an interpretation of its Execution Guarantee Rule in response to Commission action regarding
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 III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to extend a temporary exemption granted to the Exchange regarding an Interpretation of its Execution Guarantee Rule in response to Commission action concerning
The Exchange's original rule proposal in this matter was filed in response to a Commission order issued August 28, 2002, granting a
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition.
The Exchange has neither solicited nor received comments on the proposed rule change.
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 at the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the BSE. All submissions should refer to the file number in the caption above and should be submitted by July 22, 2003.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of the publication of notice thereof in the
This obligation was one the BSE assumed voluntarily in order to make its market more attractive to sources of order flow, not an obligation the Act imposes on a market. The Commission believes that the business decision to potentially forego order flow by no longer providing print protection is a judgment the Act allows the BSE to make.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On April 14, 2003, 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”) a proposed rule change pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
The Commission believes that, given Nasdaq's recent analysis of ECN responsiveness, which indicates that the average response-time across all ECNs participating in SuperMontage is less than one quarter of a second, reducing the maximum time period for Order-Delivery ECNs to respond to non-directed orders from 30 seconds to 7 seconds should give market participants a sufficient amount of time to respond to orders sent through SuperMontage.
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”)
NASD is proposing to amend NASD Rule 2210 to reinsert certain existing rule language that was inadvertently omitted from amendments to NASD Rule 2210 that the Commission recently approved. The text of the proposed rule change is available at the Office of the Secretary, NASD, and at the Commission.
In its filing with the Commission, NASD 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. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On May 9, 2003, the Commission approved amendments to NASD Rule 2210 and the Interpretive Materials that follow NASD Rule 2210, and the creation of new NASD Rule 2211, all of which govern member communications with the public (the “Advertising Modernization Rule Change”).
The Advertising Modernization Rule Change was initially filed with the Commission on March 15, 2000, shortly after the Commission had approved the proposed rule change that included current NASD Rule 2210(c)(3).
The purpose of this filing is to reinsert the language of current NASD Rule 2210(c)(3) concerning the filing and review requirements for member sales literature that contains bond mutual fund volatility ratings. The reinserted rule language is the same as the language used in current NASD Rule 2210(c)(3), other than certain minor, non-substantive changes. In this regard, the new language adds a heading prior to the paragraph, uses “NASD” rather than “the Association” to refer to NASD,
NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
NASD Regulation believes that the proposed rule change would not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The foregoing proposed rule change has been filed by the Exchange as a “non-controversial” rule change pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of this filing, the Commission may summarily abrogate this proposal if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the 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 NASD. All submissions should refer to the file number in the caption above and should be submitted by July 22, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
United States Sentencing Commission.
Notice of proposed priorities; request for public comment.
As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2004.
Public comment should be received on or before August 1, 2003.
Send comments to: United States Sentencing Commission, One Columbus Circle, NE., Suite 2-500, South Lobby, Washington, DC 20002-8002, Attention: Public Affairs-Priorities Comment.
Michael Courlander, Public Affairs Officer, Telephone: (202) 502-4590.
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p).
For the amendment cycle ending May 1, 2004, and possibly continuing into the amendment cycle ending May 1, 2005, the Commission has identified the following tentative priorities:
(1) Implementation of the PROTECT Act, Public Law 108-21, including guideline amendments addressing the directives to the Commission in (A) section 401 pertaining to downward departures; (B) sections 401, 504, 512, and 513 pertaining to new and existing sex offenses and offenses involving virtual pornography; and (C) section 608 pertaining to increased penalties for offenses involving the trafficking of GHB;
(2) consideration and implementation of recommendations made by the Commission's Organizational Guidelines Advisory Group;
(3) consideration and implementation of recommendations made by the Commission's Native American Advisory Group;
(4) continuation of its work implementing the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, including guideline amendments pertaining to (A) assaulting or threatening federal judges or other officials described in 18 U.S.C. 111 or 115; and (B) a new offense, at 18 U.S.C. 931, prohibiting violent felons from purchasing, owning, or possessing body armor;
(5) consideration of guideline amendment proposals related to the public corruption guidelines in Chapter Two, Part C (Offenses Involving Public Officials);
(6) continuation of its work on the 15 Year Study, which is composed of a number of projects geared toward analyzing the guidelines in light of the goals of sentencing reform described in the Sentencing Reform Act and the statutory purposes of sentencing set forth in 18 U.S.C. 3553(a)(2);
(7) continuation of its policy work related to manslaughter, particularly consideration of guideline amendment proposals providing specific offense characteristics in section 2A1.4 (Involuntary Manslaughter);
(8) continuation of its policy work related to immigration offenses, including offenses under sections 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) and 2L1.2 (Unlawfully Entering or Remaining in the United States);
(9) consideration of guideline amendment proposals pertaining to compassionate release programs;
(10) other miscellaneous and limited issues pertaining to the operation of the sentencing guidelines, including (A) offenses involving the unlawful sale or transportation of drug paraphernalia; and (B) offenses involving the receipt or possession of stolen mail;
(11) implementation of other crime legislation enacted during the first session of the 108th Congress warranting a Commission response;
(12) review of the limitation on the base offense level (
(13) continuation of its multiyear research, policy work, and possible guideline amendments relating to Chapter Four (Criminal History and Criminal Livelihood), which may include (A) assessment of the calculation of criminal history points for first time offenders and offenders who are in the highest criminal history categories; (B) assessment of the criminal history rules for minor offenses, juvenile offenses, and expunged convictions; (C) assessment of the criminal history rules for related cases; and (D) consideration of other application issues relating to simplifying the operation of Chapter Four.
The Commission hereby gives notice that it is seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2004, including short- and long-term research issues. To the extent practicable, comments submitted on such issues should include the following: (1) A statement of the issue, including scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.
28 U.S.C. 994(a), (o); USSC Rules of Practice and Procedure 5.2.
United States Sentencing Commission.
Notice of issues for comment on PROTECT Act and request for comment.
The Commission requests comment regarding how it might best implement the directive in section 401(m) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Public Law 108-21 (the “PROTECT Act”). Specifically, the directive instructs the Commission to reform the existing permissible grounds of downward departures. The Commission welcomes any comments and suggestions for how the Commission might restructure or otherwise amend the guidelines to accomplish this directive.
Public comment should be received on or before August 1, 2003.
Send comments to: United States Sentencing Commission, One Columbus Circle, NE., Suite 2-500, South Lobby, Washington, DC 20002-8002, Attention: Public Affairs-Public Comment.
Michael Courlander, Public Affairs Officer, Telephone: (202) 502-4590.
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a) and sometimes pursuant to other specific statutory authority. The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p).
Rule 4.4 of the Commission's Rules of Practice and Procedure provides that, with respect to proposed amendments and issues for comment, the Commission shall, “to the extent practicable, provide a minimum period of public comment of at least 60 calendar days prior to final Commission action.” Because section 401(m) of the PROTECT Act requires the Commission to promulgate amendments implementing the directive regarding downward departures from the sentencing guidelines not later than 180 days after the date of enactment of the PROTECT Act (
28 U.S.C. 994(a), (o); section 401 of the PROTECT Act, Pub. L. 108-21; and USSC Rules of Practice and Procedure 4.4.
Section 401(m) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Public Law 108-21 (the “PROTECT Act”), directs the Commission as follows:
(m) REFORM OF EXISTING PERMISSIBLE GROUNDS OF DOWNWARD DEPARTURES.—Not later than 180 days after the enactment of this Act, the United States Sentencing Commission shall—
(1) Review the grounds of downward departure that are authorized by the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission; and
(2) Promulgate, pursuant to section 994 of title 28, United States Code—
(A) Appropriate amendments to the sentencing guidelines, policy statements, and official commentary to ensure that the incidence of downward departures are substantially reduced;
(B) A policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney; and
(C) Any other conforming amendments to the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission necessitated by this Act, including a revision of paragraph 4(b) of part A of chapter 1 and a revision of section 5K2.0.
The Commission requests comment regarding how it might best implement the directive described above and generally welcomes any comments and suggestions for how the Commission might restructure or otherwise amend the guidelines to accomplish this directive.
In addition, the Commission specifically requests comment on the following:
(1) How should subsection (a) of section 5K2.0 (Grounds for Departure) and/or the commentary to section 5K2.0 (and/or Part A of Chapter One) be revised?
Section 3553(b) of title 18, United States Code, and section 5K2.0(a) authorize the sentencing court to depart downward in cases in which there exists a mitigating factor not adequately taken into consideration by the Commission in formulating the guidelines. Should the Commission provide additional and/or more restrictive guidance on such mitigating factors, particularly those described in other provisions of Chapter Five, Part K, that may warrant a downward departure?
Section 5K2.0(a) also states that “the court may depart from the guidelines, even though the reason for departure is taken into consideration in determining the guideline range (
Commentary to section 5K2.0 also states in part that “[t]he Commission does not foreclose the possibility of an extraordinary case that, because of a combination of [offender] characteristics or [not ordinarily relevant] circumstances, differs significantly from the “heartland” cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case. However, the Commission believes that such cases will be extremely rare.” Should this commentary be revised, and, if so, how?
(2) How, if at all, should Chapter Five, Part H be revised?
Should the Commission provide additional and/or more restrictive guidance on the offender characteristics described in provisions of Chapter Five, Part H, that may warrant a downward departure?
Should, for example, the Commission provide additional guidance regarding the circumstances under which an offender characteristic that is ordinarily not relevant in sentencing may become relevant?
(3) How, if at all, should guideline provisions governing downward departures for criminal history be revised? Commission data preliminarily indicate that the over-representation of the defendant's criminal history is a frequent basis for downward departure.
Section 4A1.3 (Adequacy of Criminal History Category) states in part that “[t]here may be cases where the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes. An example might include the case of a defendant with two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. The court may conclude that the defendant's criminal history was significantly less serious than that of most defendants in the same criminal history category (Category II), and therefore consider a downward departure from the guidelines.”
Should the Commission provided additional and/or more restrictive guidance in section 4A1.3 regarding the circumstances under which the court may depart for the over-representation of the defendant's criminal history?
(4) Should the Commission provide additional and/or more restrictive guidance for any downward departure authorized in Chapter Two (Offense Conduct) for specific offenses?
(5) Should the Commission provide for a downward adjustment (or, in the case of criminal history, a reduction in criminal history points) in lieu of a downward departure for any factor or downward departure basis, or for a combination of factors and/or downward departures bases, described in paragraphs (1) through (4) above, or for any other mitigating factors the Commission should more fully take into account in the guidelines? If so, how should such a downward adjustment or reduction be structured, and what should be the extent of the downward adjustment or reduction? (Note that section 401(j)(2) of the PROTECT Act prohibits the Commission from adding any new grounds of downward departure to Part K of Chapter Five on or before May 1, 2005.)
(6) Should any of the downward departure bases described in paragraphs (1) through (4) above be prohibited as a basis for downward departure?
Are there other specific suggestions that the Commission might consider to respond to the directive?
Finally, section 401(m)(2) directs the Commission to promulgate a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney. How should the Commission structure this downward departure?
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 4.250 (4
Department of State.
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 Brendan Mullarkey of the Office of Visa Services, U.S. Department of State, 2401 E St. NW., RM L-703, Washington, DC 20520, who may be reached at 202-663-1163.
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 description of the exhibit object, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, 202/619-5997, and the address is United States Department of State, SA-44, Room 700, 301 4th Street, SW., Washington, DC 20547-0001.
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 description of the exhibit object, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, 202/619-5997, and the address is United States Department of State, SA-44, Room 700, 301 4th Street, SW., Washington, DC 20547-0001.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed policy; request for comments.
This notice requests comments on a proposed statement of policy on the use of weight-based airport access restrictions as a means of protectign airfield pavement. In grant agreements between an airport operator and the FAA for Federal airport development grants, the airport operator makes certain assurances to the FAA. These assurances include an obligation to provide access to the airport on reasonable, not unjustly discriminatory terms to aeronautical users of the airport. Some airport operators have implemented restrictions on use of the airport by aircraft above a certain weight, to protect pavement not designed for aircraft of that weight. These actions have raised the question of when such an action is a reasonable restriction on use of the airport. In the interest of applyng a uniform national policy to such actions, the FAA is publishing for comment a draft policy on weight-based access restrictions at federally obligated airports.
Comments must be received by August 15, 2003. Comments that are received after that date will be considered only to the extent possible.
The proposed policy is available for public review in the Dockets Office, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. The documents have been filed under FAA Docket Number FAA-2003-15495. The Dockets Office is open between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Dockets Office is on the plaza level of the Nassif Building at the Department of Transportation at the above address. Also, you, may review public dockets on the Internet at
James White, Deputy Director, Office of Airport Safety and Standards, AAS-2, Federal Aviation Administration, 800 Independence Ave. SW., Washington, DC 20591, telephone (202) 267-3053.
Airport operators that accept federal airport development grants under the Airport Improvement Program (AIP), 49 U.S.C. 47101
a. [The sponsor] will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.
At the same time, the FAA expects that airport sponsors will protect airfield pavement from damage or early deterioration. Many airport projects funded with the AIP grants involve pavement. As a result, both the FAA and airport sponsors have a significant investment in airfield pavement, and an interest in assuring that pavement remains in acceptable condition for its design life, normally at least 20 years. The policy of assuring reasonable access to the airport and the interest in protecting the investment in airfield pavement are both extremely important, but is clear that they can potentially work against each other in a particular case.
In February 2002, the Airports Division in an FAA regional office issued a preliminary determination on the ability of a particular airport operator to limit use of the airport according to aircraft weight. In that case the weight limit effectively prohibited operation by aircraft heavier than the
In view of the importance of the policies at stake, we believe it is appropriate to issue more specific guidance on the specific issue of weight-based access restrictions.
The policy proposed in this notice provides more detailed guidance on how the FAA will interpret Grant Assurance No. 22, in cases in which an airport sponsor limits operation by aircraft above a certain weight in order to preserve the integrity of airport pavement. The FAA requests comment on the following statement of policy, and may modify the policy in accordance with comments received on this notice. For any cases presented before a final policy is issued, the FAA will apply the policy as proposed in this notice.
For the above reasons, the FAA proposes to adopt the following policy:
1. When designing new airport pavement or rehabilitating existing pavement, airport operators design the pavement to accommodate the loads and frequencies of the aircraft expected to use the airport over the period of expected pavement life. A load-bearing capacity is then assigned to the pavement based upon the most demanding aircraft. Once that pavement is constructed, airport operators have a responsibility to protect the local and Federal investment in the pavement. At the same time, airport operators are encouraged to upgrade airport pavements for forecast increases in aircraft size or operations, or if the number of operations and size of aircraft increase over time beyond what was forecast.
2. Airport pavements are designed to accommodate a finite number of aircraft operations, based on planning forecasts and experience. In most cases it should not be necessary or appropriate to impose aircraft operating restrictions to protect pavement from occasional operations of aircraft which exceed the published pavement strength. Even in the exceptional case in which the mix of aircraft types using the pavement becomes heavier over time, a limitation on maximum weight of aircraft may not be warranted. It is the nature of airport pavement to begin a gradual deterioration process as soon as it is opened to traffic. A pavement designed for a specified number of operations by an aircraft type of a particular weight will not be immediately affected by some number of operations by heavier aircraft, up to a point. In general, each 10% increase in weight of the most demanding aircraft will decrease the number of design operations by 20-25%. The original load-bearing capacity of pavement may be increased by surface overlays or other pavement rehabilitation techniques. Therefore, some number of operations by aircraft exceeding the design load-bearing capacity of airport pavement by some degree will ordinarily not have a sufficient impact to shorten its useful life. (The Airport/Facility Directory introductory language notes that “[m]any airport pavements are capable of supporting limited operations with gross weights of 25-50% in excess of the published figures.”).
3. However, where the airport operator reasonably believes that actual damage or excessive wear has resulted or would result from operation of aircraft of a particular weight (and particular gear configurations), then the airport operator can limit those operations to the extent necessary to prevent that damage or excessive wear.
4. The design load-bearing capacity of pavement is a guide to the probability of adverse effects on pavement life. Design load-bearing capacity is demonstrated by planning and engineering documents created at the time the pavement was designed, constructed, rehabilitated or improved. Testing to determine actual load-bearing capacity may be appropriate or necessary where design information is unavailable or does not appear to represent actual current condition of the pavement.
5. Any action by the airport operator to limit operations above the design load-bearing capacity must be reasonable and unjustly discriminatory, and would require evidence of the effect of operations at certain weights on the pavement. Such limitations, if determined to be necessary, could include:
• Requiring particular taxi routes and parking areas for aircraft above a certain weight, to avoid weaker areas;
• Requiring prior permission for operation by aircraft above the design load-bearing capacity of the pavement (see examples in Exhibit 1);
• Permitting operations of such aircraft only up to a certain weight;
• Prohibiting all operations by aircraft exceeding a weight at which even a small number of operations would significantly reduce pavement life.
• Assigning heavy aircraft a particular runway (through agreement with Air Traffic Control) if operationally feasible.
Operating procedures, such as requiring use of designated taxiways and ramp parking areas, are preferable to an outright ban or limit on the number of operations. A limit on the number of operations and/or weight of operations must be based on an analysis of pavement life using known pavement design capacity, actual load-bearing capacity, and actual condition. That analysis can be performed with the AAS-100 Pavement Design Software, based on Advisory Circular (AC) 150/5320-6D, available on the FAA Airports web site. An analysis is also required to assess the load-carrying capacity of existing bridges, culverts, in-pavement light fixtures, and other structures affected by the proposed traffic. Such structures are generally not capable of supporting a single load application above design limits, and may preclude any operations by heavier aircraft unless other taxi routes can be specified. Guidance for those evaluations is stated in AC 150/5320-6D.
6. The airport operator may avoid any issue of reasonable, nondiscriminatory access to the airport by accommodating current operations and bringing pavement up to the standard for the current use of the airport as the condition of the pavement requires.
7. This policy applies only to pavement weight-bearing capacity and pavement condition, and does not apply to geometric airport design standards.
8. This policy applies only to the purpose of protecting an airport operator's investment in pavement, and is not a substitute for noise restrictions. If there is no showing of need to protect pavement life, or the limit on airport use appears motivated by interest in mitigating noise without going through processes that exist for such restrictions, an attempt to limit aircraft by weight will be considered unreasonable. The FAA notes that there are a few existing noise rules that include weight categories, generally adopted before ANCA and the AAIA were enacted. Issues arising under those rules will be addressed on a case-by-case basis.
Airport operators may experience demand for use of the airport by aircraft that weigh more than the design load-bearing capacity of the airport
• Pavement load-bearing capacity.
• The mix of aircraft operating at the airport. The heavier the aircraft, the fewer operations it takes to have an effect on pavement life.
• Seasonal effects on pavement strength, for example wet or dry subgrade conditions or very low or high pavement temperatures.
The following scenarios are not recommendations but simply examples of limitations that might be appropriate in particular circumstances. Local conditions may require more complex solutions. An engineering analysis will be required in each case.
The airport pavement is designed to 60,000 lb. dual-wheel load. Pavement design and soil support conditions are known. Operations up to 60,000 lb. are unrestricted, and the issue is how many flights should be permitted above that weight.
The airport receives frequent operations by several aircraft types at 70,000 lb., and occasional operations at 105,000 lb., but very few operations by other aircraft types in between those weights.
Reference to AC 150/5320-6D shows that on an annual basis up to xxxx operations at 70,000 lb. and xx operations at 105,000 lb. together would have no measurable effect on the life of the pavement, but more operations at either weight would begin to shorten pavement life.
The operator could require prior permission for operations above 60,000 lb. Permission would be granted on a first-come first-served basis, for xx (xxxx/52) operations per week up to 70,000 lb. and for x (xx/52) operations per week up to 110,000 lb.
The airport pavement is designed to 100,000 lb., with dual-wheel gear configuration. Pavement design and soil support conditions are known.
Most operations at the airport are well under 100,000 lb., but the airport receives regular operations by various types of aircraft at weights from 100,000 lb. up to 135,000 lb. Operations up to 100,000 lb. are unrestricted, and the issue is how many flights should be permitted above that weight.
Reference to AC 150/5320-6D shows that on an annual basis various assortments of operations above 100,000 lb. can operate without measurable effect on the life of the pavement. However, there is no single “right“ combination, because more operations at one weight will reduce the number that can be permitted at another weight. Also, each flight at the heavier end of the scale, e.g., 135,000 lb., has a disproportionately adverse effect equal to several flights at the lower end of the scale, e.g., just above 100,000 lb.
There may be many ways to allocate limited operating rights for the various types of aircraft that would use the airport over time, while controlling the maximum cumulative stress on the airport's pavement. One way would be to allocate operating permission by “points” rather than by number of operations. While the numbers actually used would need to be validated using AC 150/5320-6D, something like the following could be used:
Each operation 100,001 lb. to 110,000 lb.; 1 point.
Each operation 110,001 lb. to 120,000 lb.; 2 points.
Each operation 120,001 lb. to 130,000 lb.; 4 points.
Each operation 130,001 lb. to 140,000 lb.; 6 points.
If AC 150/5320-6D indicated that no combination of operations equal to an annual usage of 1200 points would have an adverse effect on pavement life, then the airport operator could allocate 23 points a week with no adverse effects.
The operator would require prior permission for operations above 100,000 lb. Permission would be granted on a first-come first-served basis, until the weekly allocation of points was assigned.
National Park Service and Federal Aviation Administration.
Notice.
By
Barry Brayer, Executive Resource Staff, Western Pacific Region Headquarters, 15000 Aviation Blvd., Hawthorne, CA 90250, telephone: (310) 725-3800, Email:
The National Parks Air Tour Management Act of 2000 (the Act) was enacted on April 5, 2000, as Public Law 106-181. The Act required the establishment of the advisory group within 1 year after its enactment. The NPOAG was established in March 2001. The advisory group is comprised of a balanced group of representatives of general aviation, commercial air tour operations, environmental concerns, and Native American tribes. The Administrator and the Director (or their designees) serve as ex officio members of the group. Representatives of the Administrator and Director serve alternating 1-year terms as chairman of the advisory group.
The advisory group provides “advice, information, and recommendations to the Administrator and the Director—
(1) on the implementation of this title [the Act] and the amendments made by this title;
(2) on commonly accepted quiet aircraft technology for use in commercial air tour operations over a national park or tribal lands, which will receive preferential treatment in a given air tour management plan;
(3) on other measures that might be taken to accommodate the interests of visitors to national parks; and
(4) at the request of the Administrator and the Director, safety, environmental, and other issues related to commercial air tour operations over a national park or tribal lands.”
To maintain the balanced representation of the group, the FAA and the NPS recently published a notice in the
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on application.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Bismarck Municipal Airport under the provisions of the 49 U.S.C. 40117 and Part 158 of the Federal Aviation Regulations (14 CFR part 158).
Comments must be received on or before July 31, 2003.
Comment on this application may be mailed or delivered in triplicate to the FAA at the following address: Bismarck Airports District Office, 2301 University Drive, Building 23B, Bismarck, North Dakota 58504.
In addition, one copy of any comments submitted tot he FAA must be mailed or delivered to Mr. Gregory Haug, Airport Manager of the City of Bismarck, North Dakota at the following address: Bismarck Municipal Airport, PO Box 991, Bismarck, North Dakota 58502.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the city of Bismarck under section 158.23 of Part 158.
Mr. Thomas T. Schauer, Program Manager, Bismarck Airports District Office, 2301 University Drive, Building 23B, Bismarck, North Dakota 58504, (701) 323-7380. The application may be reviewed in person at this same location.
The FAA proposes to rule and invite public comment on the application to impose and use the revenue from a PFC at Bismarck Municipal Airport under the provisions of the 49 U.S.C. 40117 and Part 158 of the Federal Aviation Regulations (14 CFR part 158).
On June 6, 2003, the FAA determined that the application to impose and use the revenue from a PFC submitted by the City of Bismarck was substantially complete within the requirements of § 158.25 of Part 158. The FAA will approve or disapprove the application, in whole or in part, no later than September 6, 2003.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under FOR FURTHER INFORMATION CONTACT.
In addition, any person, upon request, may inspect the application, notice and other documents germane to the application in person at the City of Bismarck—Bismarck Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on application.
The FAA proposes to rule and invites public comment on the application to use the revenue from a PFC at General Mitchell International Airport under the provisions of the 49 U.S.C. 40117 and Part 158 of the Federal Aviation Regulations (14 CFR part 158).
Comments must be received on or before July 31, 2003.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Minneapolis Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, Minnesota 55450.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. C. Barry Bateman, Airport Director of the General Mitchell International Airport, Milwaukee, Wisconsin at the following address; 5300 S. Howell Avenue, Milwaukee, Wisconsin 53207-6189.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the County of Milwaukee under § 158.23 of part 158.
Ms. Sandra E. DePottey, Program Manager, Minneapolis Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, Minnesota 55450, 612-713-4363. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to use the revenue from a PFC at General Mitchell International Airport under the provisions of the 49 U.S.C. 40117 and
On June 9, 2003 the FAA determined that the application to use the revenue from a PFC submitted by Country of Milwaukee was substantially complete within the requirements of § 158.25 of Part 158. The FAA will approve or disapprove the application, in whole or in part, no later than September 6, 2003.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the County of Milwaukee.
Federal Railroad Administration, DOT.
Notice and Request For Comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before July 31, 2003.
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493-6292) or Debra Steward, Office of Information Technology and Productivity Improvement, RAD-20, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6139). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Pub. L. No. 104-13, § 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On April 25, 2003, FRA published a 60-day notice in the
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30 day notice is published. 44 U.S.C. 3507 (b)-(c); 5 CFR 1320.12(d);
The summaries below describe the nature of the information collection requirements (ICRs) and the expected burden. The revised requirements are being submitted for clearance by OMB as required by the PRA.
A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this notice in the
44 U.S.C. 3501-3520.
In accordance with Part 232 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for designating repair locations as prescribed in § 232.15 (g).
Pursuant to 49 CFR 232.17, the Canadian Pacific Railway Company (CP), on behalf of their Soo Line Railroad Subsidiary, seeks FRA's approval to designate locations on their Soo Line property where brake system repairs will be performed, as prescribed in § 232.15(g) of the Federal Regulations,
CP states that all repair track locations will have full-time qualified car men on duty and these locations will be equipped with yard air plants, jacking pads and single car test devices. They may not be enclosed repair shops. All road truck locations are serviced regularly by qualified car men with fully equipped repair trucks that include compressors, jacks, and single car test devices. These locations may or may not have jacking pads. All of the above locations have tracks that are readily and safely accessible for the car men to make repairs. All locations are commonly serviced by through trains, reducing the need for additional switching and the related hazards. All locations can make repairs to most part 215, 231 and 232 defects to include performing single car air tests. All road truck locations are in reasonable proximity to their home base, which will accommodate the availability of material, effective and timely repair, and accessibility in adverse weather conditions. Furthermore, designating the above locations as the repair locations will not diminish CP's ability to effect emergency repairs at other locations, where cars cannot be safely moved to a designated location, including, but not limited to, cars set off as a result of wayside inspections and trackside warning detectors.
Pursuant to 49 CFR 232.17, CP affirms that a copy of their petition to designate the above locations as their repair locations has been provided to the following labor organizations that represent the employees working for the CP: Brotherhood of Railway Carmen, Brotherhood of Locomotive Engineers and the United Transportation Union.
Interested parties are invited to submit written comments to FRA. All written communications concerning this petition should identify the appropriate
All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The Farmrail System owns three passenger coaches which were built in 1954-56. These coaches are not used in regular service but only on a limited seasonal basis primarily in conjunction with the Oklahoma Tourism and Recreation Department's resort and conference center located at Quartz Mountain State Park.
The cars operate on trackage owned by the Oklahoma Department of Transportation for which Farmrail acts as lessee-operator. The excursion trains operate from a station near the entrance to Quartz Mountain State Park and run northward around Lake Lugert through a sparsely populated area to Lone Wolf, Oklahoma and back. Farmrail requests relief from the requirements of Title 49 Code of Federal Regulations (CFR) 223.15 Requirements for existing passenger cars due to the infrequent use of the cars, the planned usage for excursion service, and the cost of installing compliant glazing.
The cars are former VIA Rail Canada equipment and have a double-pane combination of
FRA granted Farmrail relief from the requirements of CFR 223.15 to operate their three passenger cars, numbers FMRC 5627, 5478, and 5560, without FRA compliant glazing on a limited basis for a period of five years on May 24, 2002. Subsequent to FRA granting the subject waiver, Farmrail restated the intended area of operation for these excursion/charter trains to include the entire 354 mile System. This is a major modification to the original waiver request. The additional proposed area of operation was not included in the original safety evaluation. Therefore, Farmrail requested reopening of this docket and petitions for the expanded area of operation.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA in writing before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (
FRA wishes to inform all potential commenters that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Federal Transit Administration (FTA), DOT.
Notice of Intent to prepare an Environmental Impact Statement.
The Federal Transit Administration (FTA) and the Central Ohio Transit Authority (COTA) are issuing this notice to advise interested agencies and the public that, in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, an Environmental Impact Statement (EIS) is being prepared for the proposed transportation improvements in the North Corridor and adjacent areas in the City of Columbus and Franklin, and Delaware Counties, within the metropolitan area of Columbus, Ohio.
The EIS will evaluate the following alternatives: a no-build alternative; a transportation system management (TSM) alternative; build alternatives consisting of light rail transit in one of several alignment options combined
The EIS will address the need to improve mobility and reverse-commute access in the corridor, reduce adverse environmental impacts in the region, provide long-term, cost-effective transportation infrastructure and services, and enhance regional economic development.
Written comments on the scope of the analysis and the impacts to be considered should be sent by August 15, 2003 to: Mr. Michael L. Bradley, Director of Rail Development, Central Ohio Transit Authority, 1650 Lake Shore Drive, Suite 300, Columbus, OH 43204.
Public Scoping meetings will be held at the following locations:
Wednesday, July 23, 2003 at North Broadway United Methodist Church, 48 East North Broadway, Columbus, Ohio from 6 to 8 pm. COTA will give a presentation on the proposed action at 6:30 pm.
The appropriate federal, state, and local agency offices will be notified individually about the time and location of the interagency scoping meeting.
The locations of the scoping meetings are accessible to persons with disabilities. Any individual with a disability who requires special assistance to participate in the scoping meetings should contact Mr. Michael L. Bradley, Director of Rail Development, Central Ohio Transit Authority, 1650 Lake Shore Drive, Suite 300, Columbus, Ohio 43204 or should call the project information line at (866) “RAILCOTA or COTA TDD at (614) 228-1832 available weekdays 8:30 a.m.—5:30 p.m.), or should send an e-mail to
Ms. Vanessa Adams, Senior Community Planner, Federal Transit Administration, 200 West Adams Street, Suite 320, Chicago, Illinois 60606-5232; phone: (312) 353-2789.
The Federal Transit Administration (FTA), the federal lead agency, in cooperation with the Central Ohio Transit Authority (COTA), the local lead agency, is preparing an Environmental Impact Statement (EIS) for proposed transportation improvements in the North Corridor and adjacent areas. The lead agencies will also seek the cooperation of the Federal Railroad Administration (FRA) and the Mid-Ohio Regional Planning Commission (MORPC), the metropolitan planning organization (MPO) responsible for transportation planning in metropolitan Columbus.
The transportation improvements have been defined through a Major Investment Study (MIS) conducted in 1995 and updated in 2001, which included extensive public outreach and interagency involvement. The MIS is available for public review at the COTA office by contacting Mr. Michael Bradley as described under
FTA and COTA invite interested individuals, organizations, and federal, state, and local agencies to participate in defining the alternatives to be evaluated and identifying any significant social, economic and environmental issues related to the alternatives. Comments on the appropriateness of the alternatives and impact-related issues are encouraged. Specific suggestions on additional alternatives to be examined and issues to be addressed are welcomed and will be considered in establishing the final study scope. Comments may be made orally at the meetings or in writing no later than August 15, 2003.
COTA staff will be present at the scoping meetings to describe corridor alternatives, answer questions, and receive comments. Additional opportunities for public participation will be provided throughout the EIS preparation to review findings and results and to solicit comments. Interested persons will be notified of project progress through a continuing community information program and materials distributed to the project mailing list that will include all scoping participants.
The study area for the North Corridor Light Rail Transit project (NCLRT) is located within the metropolitan area of Columbus, Ohio in the City of Columbus and Franklin and Delaware Counties. The transit alternative extends approximately 13 miles between the Franklin/Delaware County line in the Polaris area and downtown Columbus and centered on a path generally parallel to Interstate-71. The northern terminus of the transit study area is the intersection of Flint Road and Lazelle Road at the Franklin and Delaware county line and the southern terminus is the intersection of High Street and Fulton Street in downtown Columbus. The study area is generally bounded on the west by the Olentangy River and State Route 315 and on the east by State Route 3 (Cleveland Avenue/Westerville Road). Because one of the transit alternatives includes the shared use of the CSX Transportation (CSXT) and Norfolk Southern (NS) railroad right-of-way, the study will also evaluate impacts on the regional freight railroad network in Central Ohio.
Most of the corridor is within the urban setting of the City of Columbus, but it also includes the suburban communities of Minerva Park, Riverlea and portions of the cities of Worthington and Westerville. Several major activity centers are located within the corridor and at the northern and southern termini, including cultural sites, entertainment districts, hospitals,
Approximately 233,000 people live in the study area and the population is expected to increase to more than 248,000 by year 2025. The North Corridor has approximately 235,000 jobs, which is one-third of the region's total employment. The number of jobs is expected to increase in the study area to 278,000 by 2025. Due to the population and employment within the North Corridor, COTA's busiest bus route is within the study area, serving approximately 13,000 riders per day in the Ohio State University area. The North Corridor is considered the most congested area in the Columbus metropolitan area.
COTA and MORPC have been working together to address the transportation problems and needs in the Columbus metropolitan area. In 1993, COTA and MORPC completed an update of the long range plan for public transportation in the region, which recommended a series of transit system improvements, including the development of eight fixed guideway transit lines using existing freight rail corridors. As a result of the Long Range System Plan Analysis, the 13-mile North Corridor, extending between the Polaris area and Downtown Columbus generally along Interstate-71, was identified as the priority corridor for fixed guideway transit improvements.
COTA and MORPC conducted a Major Investment Study (MIS) for the North Corridor between 1993 and 1995, with the recommendation to expand bus service as the locally preferred alternative. Following the completion of Vision 2020, a long-range transit plan for central Ohio, in 2001 COTA and MORPC updated the 1995 North Corridor MIS. The MIS update concluded with the selection of a locally preferred alternative comprised of light rail transit and substantial improvements to bus service in the corridor between the Polaris area and Downtown Columbus.
The scoping meetings, other community meetings and written comments will be a major source of alternatives for consideration in the EIS. Transportation alternatives proposed for consideration in the North Corridor include:
1.A No-Action Alternative, which is the continuation of existing bus service policies in the study area. Under the No-Action Alternative, increases in service to the year 2025 would track with increases in demand due to population or employment growth in the area, in accordance with current service policies.
2. A Transportation System Management (TSM) Alternative, which focuses on operational and low to medium cost capital improvements to bus transit routes and service in the project area, and attempts to serve the project purpose and need as much as possible without the construction of a new fixed guideway.
3. Build Alternatives comprised of Light Rail Transit (LRT) combined with enhanced bus service. The LRT route extends about 13 miles from the Polaris area to the Columbus Central Business District. From Polaris to about 17th Street, the light rail line is proposed to be located in railroad right-of-way (ROW) parallel to the CSXT Columbus line and NS Sandusky-Columbus rail lines. Street running operations are proposed for the light rail line from the vicinity of 17th Street to Fulton Street in the Downtown. The proposed street running alignments south of 17th Street would be along Summit and/or Fourth Streets with a transition to High Street at Interstate 670. An alternative alignment with street running operations along High Street between approximately 17th Street and Interstate 670 that would more directly serve the Ohio State University campus may also be considered.
Two options are under consideration for the portion of the project that is located in the rail ROW between Polaris and about 17th Street: Under one of the options for the railroad right-of-way, COTA may construct a new freight railroad intermodal facility in Delaware or Union County in the central Ohio area.
Fourteen potential transit stations would be located to serve potential trip generators and in areas where economic development activities are planned or underway. The locations of stations and resulting impacts will be an important area of consideration during the study.
Based on public and agency input received during scoping, variations of the above alternatives and other transportation-related improvement options, both transit and non-transit, may be considered for the North Corridor.
The FTA and COTA will evaluate all social, economic and environmental impacts of the alternatives analyzed in the EIS. Impacts may include: Land use, zoning, and economic development; secondary development; cumulative land use impacts; land acquisition, displacements, and relocation of existing uses; historic and archaeological resources; parklands and recreation areas; neighborhoods and communities; environmental justice; air quality; noise and vibration; hazardous materials; ecosystems; water resources; construction impacts; safety and security; utilities; finance; and transportation. Other potential impact issues may be added as a result of scoping and interagency coordination efforts. The proposed impact assessment and evaluation will take into account both positive and negative effects, direct and indirect impacts, short-term (construction) and long-term operational impacts, and cumulative effects. Measures to avoid or mitigate any significant adverse impacts will be developed.
In accordance with FTA policy, all federal laws, regulations and executive orders affecting project development, including but not limited to the regulations of the Council on Environmental Quality and FTA implementing NEPA (40 CFR parts 1500-1508 and 23 CFR part 771), the Clean Air Act, Section 404 of the Clean Water Act, Executive Orders 11988, 11990 and 12898 regarding floodplains, wetlands, and environmental justice, respectively, the National Historic Preservation Act, the Endangered Species Act, and section 4(f) of the Department of Transportation Act, will be addressed to the maximum extent practicable during the NEPA process.
The Draft Environmental Impact Statement (DEIS) will be circulated to
Bureau of the Public Debt, Fiscal Service, Treasury.
Notice.
For the period beginning July 1, 2003 and ending on December 31, 2003 the prompt payment interest rate is 3.125 per centum per annum.
Comments or inquires may be mailed to Eleanor Farrar, Team Leader, Debt Accounting Branch, Office of Public Debt Accounting, Bureau of the Public Debt, Parkersburg, West Virginia, 26106-1328. A copy of this Notice will be available to download from
This notice announces the applicable interest rate for the July 1, 2003 to December 31, 2003 period.
Frank Dunn, Manager, Debt Accounting Branch, Office of Public Debt Accounting, Bureau of the Public Debt, Parkersburg, West Virginia, 26106-1328, (304) 480-5170; Eleanor Farrar, Team Leader, Borrowings Accounting Team, Office of Public Debt Accounting, Bureau of the Public Debt, (304) 480-5166; Edward C. Gronseth, Deputy Chief Counsel, Office of the Chief Counsel, Bureau of the Public Debt, (304) 480-8692; or Geraldine J. Porco-Hubenko, Attorney-Adviser, Office of the Chief Counsel, Bureau of the Public Debt, (202) 691-3708.
Although the Renegotiation Board is no longer in existence, other Federal Agencies are required to use interest rates computed under the criteria established by the Renegotiation Act of 1971 Sec. 2, Pub. L. 92-41, 85 Stat. 97. For example, the Contract Disputes Act of 1978 Sec. 12, Pub. L. 95-563, 92 Stat. 2389 and, indirectly, the Prompt Payment Act of 1982, 31 U.S.C. 3902(a), provide for the calculation of interest due on claims at a rate established by the Secretary of the Treasury for the Renegotiation Board under Pub. L. 92-41.
Therefore, notice is given that the Secretary of the Treasury has determined that the rate of interest applicable, for the period beginning July 1, 2003 and ending on December 31, 2003, is 3.125 per centum per annum. This rate is determined pursuant to the above-mentioned sections for the purpose of said sections.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1045, Application for Tentative Refund.
Written comments should be received on or before September 2, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at (202) 622-6665, Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8613, Return of Excise Tax on Undistributed Income of Regulated Investment Companies.
Written comments should be received on or before September 2, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at (202) 622-6665, Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing notice of proposed rulemaking, INTL-978-86, Information Reporting by Passport and Permanent Residence Applicants (§ 301.6039E-1(c)).
Written comments should be received on or before September 2, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins at (202) 622-3179, or at Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1041-QT, U.S. Income Tax Return for Qualified Funeral Trusts.
Written comments should be received on or before September 2, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at (202) 622-6665, or at Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224 or through then Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 5884, Work Opportunity Credit.
Written comments should be received on or before September 2, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at (202) 622-6665, Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C.
Written comments should be received on or before September 2, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 13441, Health Coverage Tax Credit Registration Form.
Written comments should be received on or before September 2, 2003 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carol Savage at Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-3945, or through the Internet at
Estimated Time Per Response: 30 minutes.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Research and Development Office, DVA.
Notice of government owned invention available for licensing.
The invention listed below is owned by the U.S. Government as represented by the Department of Veterans Affairs, and is available for licensing in accordance with 35 U.S.C. 207 and 37 CFR part 404 to achieve expeditious commercialization of results of federally funded research and development. Foreign patents are filed on selected inventions to extend market coverage for U.S. companies and may also be available for licensing.
Technical and licensing information on the invention may be obtained by writing to: Mindy Aisen, MD, Department of Veterans Affairs, Director Technology Transfer Program, Research and Development Office, 810 Vermont Avenue NW., Washington, DC 20420; fax: 202-254-0473; email at
The invention available for licensing is: 10/360,720 “Method of Inhibiting Angiogenesis and Neuroblastoma Growth with α and β Isoforms of Neu Differentiation Factor (NDF α and NDF β).
In proposed rule document 03-15674 beginning on page 36949 in the issue of Friday, June 20, 2003 make the following correction:
On page 36950, in § 71.1, in the first column, under the heading “
Coast Guard, DHS.
Temporary interim rule with request for comments and notice of meeting.
The Coast Guard has published a series of six interim rules in today's
This interim rule, the Implementation of National Maritime Security Initiatives, establishes the general regulations for subchapter H. It does so by providing a comprehensive discussion of industry-related maritime security requirements and a summary of the cost and benefit assessments of the entire suite of interim rules. The alignment of domestic maritime security requirements with the International Ship and Port Facility Security Code and recent amendments to the International Convention for the Safety of Life at Sea is also addressed here.
The discussions provided within each of the other five interim rules are limited to the specific requirements they contain.
Effective date. This interim rule is effective from July 1, 2003 until November 25, 2003. On July 1, 2003, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this rule.
Comments. To ensure that your comments and related material are not entered more than once in the docket, please submit them by only one of the following means:
(1) Electronically to the Docket Management System at
(2) By mail to the Docket Management Facility (USCG-2003-14792) at the U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
You must also mail comments on collection of information to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attn: Desk Officer, U.S. Coast Guard.
If you have questions on this rule, call Commander Suzanne Englebert (G-M-1), U.S. Coast Guard by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or by electronic mail
Due to the short timeframe given to implement these National Maritime Transportation Security initiatives, as directed by the Maritime Transportation Security Act (MTSA) of 2002 (MTSA, Public Law 107-295, 116 Stat. 2064), and to ensure all comments are in the public venue for these important rulemakings, we are not accepting comments containing protected information for these interim rules. We request you submit comments, as explained in the Request for Comments section below, and discuss your concerns or support in a manner that is not security sensitive. We also request that you not submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
Electronic forms of all comments received into any of our dockets can be searched by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor unit, etc.) and is open to the public without restriction. You may also review the Department of Transportation's complete Privacy Act Statement published in the
We encourage you to participate in this rulemaking by submitting comments and related material. Your comments will be considered for the final rule we plan to issue before November 25, 2003, to replace this interim rule. If you choose to comment on this rule, please include your name and address, identify the specific docket number for this interim rule (USCG-2003-14792), indicate the specific heading of this document to which each comment applies, and give the reason for each comment. If you have comments on another rule please submit those comments in a separate letter to the docket for that rulemaking.
You may submit your public comments and material electronically, by fax, by delivery, or by mail to the Docket Management Facility at the address under
We will hold a public meeting on July 23, 2003, in Washington, DC at the Grand Hyatt Hotel, at the address listed under
We did not publish a notice of proposed rulemaking (NPRM) for this rulemaking and are making this rule effective upon publication. Section 102(d)(1) of the MTSA requires the publication of an interim rule as soon as practicable without regard to the provisions of chapter 5 of title 5, U.S. Code (Administrative Procedure Act). The MTSA also states that any interim rule issued to implement its provisions shall expire on November 25, 2003, unless it has been superseded by a final regulation. The Coast Guard finds that harmonization of U.S. regulations with maritime security measures adopted by the International Maritime Organization (IMO) in December 2002, and the need to institute measures for the protection of U.S. maritime security as soon as practicable, furnish good cause for this interim rule to take effect immediately under both the Administrative Procedure Act and section 808 of the Congressional Review Act.
In the aftermath of September 11, 2001, the Commandant of the Coast Guard reaffirmed the Coast Guard's Maritime Homeland Security mission and its lead role—in coordination with the Department of Defense; Federal, State, and local agencies; owners and operators of vessels and marine facilities; and others with interests in our nation's Marine Transportation System—to detect, deter, disrupt, and respond to attacks against U.S. territory, population, vessels, facilities, and critical maritime infrastructure by terrorist organizations.
In November 2001, the Commandant of the Coast Guard addressed the IMO General Assembly, urging that body to consider an international scheme for port and shipping security. Recommendations and proposals for comprehensive security requirements, including amendments to International Convention for Safety of Life at Sea, 1974, (SOLAS) and the new ISPS Code, were developed at a series of intersessional maritime security work group meetings held at the direction of the IMO's Maritime Safety Committee.
The Coast Guard submitted comprehensive security proposals in January 2002 to the intersessional maritime security work group meetings based on work we had been coordinating since October 2001. Prior to each intersessional meeting, the Coast Guard held public meetings as well as coordinated several outreach meetings with representatives from major U.S. and foreign associations for shipping, labor, and ports. We also discussed maritime security at each of our Federal Advisory Committee meetings and held meetings with other Federal agencies having security responsibilities.
In January 2002, the Coast Guard also held a 2-day public workshop in Washington, DC, attended by more than 300 individuals, including members of the public and private sectors, and representatives of the national and international marine community (66 FR 65020, December 17, 2001; docket number USCG-2001-11138). Their comments indicated the need for specific threat identification, analysis of threats, and methods for developing performance standards to plan for response to maritime threats. Additionally, the public comments stressed the importance of uniformity in the application and enforcement of requirements and the need to establish threat levels with a means to communicate threats to the Marine Transportation System.
At the Marine Safety Committee's 76th session and subsequent discussions internationally, we considered and advanced U.S. proposals for maritime security that took into account this public and agency input. The Coast Guard considers both the SOLAS amendments and the ISPS Code, as adopted by IMO Diplomatic Conference in December 2002, to reflect current industry, public, and agency concerns. The entry into force date of both the ISPS Code and related SOLAS amendments is July 1, 2004, with the exception of the Automatic Identification System (AIS) whose implementation for vessels on international voyages was accelerated to no later than December 31, 2004, depending on the particular class of SOLAS vessel.
Domestically, the Coast Guard had previously developed regulations for security of large passenger vessels that are contained in 33 CFR parts 120 and 128. Complementary guidance can be found in Navigation and Vessel Inspection Circular (NVIC) 3-96, Change 1, Security for Passenger Vessels and Passenger Terminals. Prior to development of additional regulations, the Coast Guard, with input from the public, needed to assess the current state of port and vessel security and their vulnerabilities. As mentioned previously, to accomplish this, the Coast Guard conducted a public workshop January 28-30, 2002, to assess existing Marine Transportation System security standards and measures and to gather ideas on possible improvements. Based on the comments received at the workshop, the Coast Guard cancelled NVIC 3-96 (Security for Passenger Vessels and Passenger Terminals) and issued a new NVIC 4-02 (Security for Passenger Vessels and Passenger Terminals), developed in conjunction with the International Council of Cruise Lines, that incorporated guidelines consistent with international initiatives (the ISPS Code and SOLAS). Additional NVICs were also published to further guide maritime security efforts, including NVIC 9-02 (Guidelines for Port Security Committees, and Port Security Plans Required for U.S. Ports), NVIC 10-02 (Security Guidelines for Vessels); and NVIC 11-02 (Security Guidelines for Facilities). The documents are available in the public docket (USCG-2002-14069) for review at the locations under
On November 25, 2002, President George W. Bush signed into effect Public Law 107-295, MTSA, 2002, which had been proposed to Congress the year before as the Port and Maritime Security Act (S. 1214). The MTSA requires the Secretary to issue an interim rule, as soon as practicable, as a temporary regulation to implement the Port Security section of the Act. The MTSA expressly waives the requirements of the Administrative Procedure Act, including notice and comment, for this purpose.
Nevertheless, the Coast Guard, in coordination with other agencies of the Department of Homeland Security
To comply with the mandates of the MTSA, the Coast Guard is implementing portions of section 102 of the MTSA (46 U.S.C. sections 70102, 70103b through 70103d, 70104, 70114, and 70117) through this and a series of five other interim rules published elsewhere in today's
As already stated, we have segmented the maritime security regulations into six separate interim rules. The entire series of rulemakings establishes a new subchapter H, containing six new parts, in Title 33 of the Code of Federal Regulations. For the ease of reading and comprehension, the rulemakings were written to highlight each segment of the maritime community and structured based on the organization of the regulations rather than in one single interim rule. A brief description of each of the six interim rules follows:
1.
2.
3.
4.
5.
6.
For each interim rule, the requirements of the MTSA Section 102 align, where appropriate, with the security requirements embodied in the SOLAS amendments and the ISPS Code; however, the MTSA has broader application that includes domestic vessels and facilities. Thus, where appropriate, the Coast Guard intends to implement the MTSA through the requirements in the SOLAS amendments and the ISPS Code, parts A and B, for all vessels and facilities that are currently required to meet SOLAS, as well as those vessels on international voyages that fall below the mandated 500 gross tonnage, ITC (International Convention on Tonnage Measurement of Ships, 1969 (ITC)) threshold and facilities that are at risk of being
In aligning the MTSA Section 102 requirements with the SOLAS amendments and the ISPS Code security requirements, we consider that the implementation of these requirements is best done through mandating compliance with the SOLAS amendments and the ISPS Code. The Coast Guard considers ISPS Code, part B, an essential element to ensure full and effective compliance with the intent of the MTSA. Foreign flag vessels entering the U.S. will be expected to carry valid International Ship Security Certificates (ISSC) and have the security plans fully implemented. The relevant provisions in ISPS Code, part B, will be taken into account by Port State Control Officers to assess if the security plan is fully implemented as required by the interim rules found elsewhere in today's
In addition to tracking performance, the Coast Guard's Port State Control program will also closely scrutinize an Administration's designation of recognized security organizations to ensure that those organizations fully meet the competencies and qualifications in the ISPS Code. Vessels with International Ship Security Certificates issued by recognized security organizations that are not properly designated, or that do not meet the required competencies and qualifications, will be subject to strict control measures, including possible expulsion from port and denial of entry into the United States. Therefore, it is imperative that Administrations carefully evaluate an organization through a rational process, adhering to the stringent criteria in the ISPS Code and any future standards that are developed by IMO, before designating the organization as a recognized security organization and delegating certain security functions to it.
The requirements for the AIS interim rule found elsewhere in today's
Many current requirements for security exist that are impacted by the interim rules published in today's
The requirements in the interim rules also refer to and amend certain parts of 46 CFR and 49 CFR to ensure certificate of inspection requirements and other sections pertaining to facilities will include the new subchapter H requirements.
Notice of arrival requirements found in 33 CFR 160 have also been amended in the Vessel Security interim rule found elsewhere in today's
As required in section 102 of the MTSA (46 U.S.C. section 70102a), the Coast Guard conducted an assessment of vessel types and U.S. facilities on or adjacent to the waters subject to the jurisdiction of the U.S. to identify those vessel types and U.S. facilities that pose a high risk of being involved in a transportation security incident. The MTSA defines a transportation security incident as a security incident resulting in a significant loss of life, environmental damage, a disruption to the transportation system, or economic disruption in a particular area.
In October 2001, the U.S. Coast Guard urgently needed to prioritize vessels and facilities based on the vulnerabilities to potential security threats and the consequences of potential incidents. We used a systematic, scenario-based process known as Risk-Based Decision Making (RBDM) to meet those needs. RBDM ensured a comprehensive evaluation by considering the relative risks of various target and attack mode combinations or scenarios. This provided a more realistic estimation of risk (and more efficient risk management activities) than a simple “worst-case outcome” assessment where only the worst possible consequences were considered.
In addition, the RBDM approach was based on the recommendations from the U.S. General Accounting Office (GAO). Managing risk is one of the best tools to complete a security assessment and to determine appropriate security measures (GAO-01-822). The GAO recommended a comprehensive security threat and risk assessment process (GAO-01-1158T).
Another GAO report,
Risk management principles acknowledge that while risk generally cannot be eliminated, it can be reduced. Risk reduction is done by adjusting operations to reduce consequences, threats, or vulnerability of a security threat (consequences, threats and vulnerability will be discussed later in this document). Generally, it is easier to reduce vulnerabilities by adding security measures than to reduce consequences or threats (although reductions in all three are possible).
Risk assessments provide visibility into those elements of the risk equation that exert the greatest influence on risk. Those elements become the priorities in the risk management approach. The goal for maritime security is to ensure that if the level of threat increases, either the consequences or vulnerabilities decrease enough to offset that increase.
First, to look at risk from the port level, local experts in the area of commercial maritime safety and security met with a team of professional risk consultants. Together we developed the
Second, at the area level, regional Coast Guard and other maritime experts in the area of commercial maritime safety and security compiled and analyzed the local level PS-RAT results to gain a better understanding of the security risks affecting their Coast Guard Districts and Areas. This assessment identified some recurring scenarios and common issues that needed to be addressed beyond the local level. It also helped clarify the need for another tool with a wider perspective that would be capable of evaluating risks at the national level.
Because of the local, relative nature of these assessments the PS-RAT did not support the national comparisons that were necessary for strategic planning. To accomplish strategic planning at the national level, a third team of Coast Guard subject matter and risk experts produced the
The Coast Guard used the N-RAT to determine risks associated with specific threat scenarios against various classes of targets within the Marine Transportation System. The targets considered included vessels, facilities, waterways, and marine-related transportation systems. This allowed the Coast Guard to systematically consider all segments of the commercial maritime community to evaluate their potential for being involved in a transportation security incident.
The scenarios considered each element within the maritime community with respect to three general exposures: Susceptibility as a target; Use as a means of transferring or enabling the transfer of terrorists or terrorism-related materials; and Use of vessel or facility as a weapon.
The three above-mentioned general threat scenarios integrate multiple circumstances considered as specific attack modes. That is, there are subordinate scenarios under each general scenario. For example in the basic threat scenario of “susceptibility as a target”, a “boat loaded with explosives exploding alongside a docked tank vessel” is one attack mode while “tank vessel being commandeered and intentionally damaged” is another.
The N-RAT included over 50 target classes and 12 specific attack modes. This resulted in a matrix consisting of over 600 possible target/attack scenarios. Next, the 600 scenarios were screened for credibility by the expert panel. The credibility of a threat was based on the plausibility of an enemy actually carrying out the attack mode. For example, the “use as a means of transferring or enabling the transfer of terrorists or terrorism-related materials;” scenarios were screened out as “not credible attack modes” for military targets due to the inherent security measures in place. However, external attacks on these same targets were considered to be credible and were evaluated by the team. To balance comprehensiveness with efficiency, all scenarios were considered but only those scenarios deemed credible by the expert panel were further evaluated for risk.
Each credible threat scenario was evaluated by the panel of experts to determine the risk associated with a given attack against a specific target. The evaluation is based on a model showing the possible outcomes from any potential transfer or attack mode. Using previously cited GAO guidance in this area; the N-RAT risk was modeled as a function of the threat, vulnerability and consequences associated with each target/attack scenario. Each element is explained in the following sections. We realize that the terms used to identify each element may have recognized meanings in other contexts. In order to reduce confusion, we have included, as the first sentence in each element's discussion, the meaning associated with these terms for the purposes of the N-RAT.
The term “threat” is a measure of the likelihood of an attack. It represents the perceived probability of an attack based on maritime domain awareness and the existence of intelligence.
Within the N-RAT, five threat levels were identified. The threat magnitude was described, and scoring benchmarks were provided for each level. Each benchmark of threat intensity was assigned a probability of occurrence for use in risk calculations. For each scenario, the experts estimated the threat associated with an attack after considering the intent of hostile groups, prior security incidents, the capability
The term “vulnerability” measures the conditional probability of success given that a threat scenario occurs. It evaluates the adequacy and effectiveness of safeguards (both existing and proposed).
For the N-RAT, an attack was estimated as likely to succeed only if: the target was available, the target was physically accessible to be attacked, organic security associated with the target would not detect and defeat the intended attack, and the mode of attack would be capable of producing the intended consequences by overcoming the inherent safeguards designed into the system.
If all of the above mentioned barriers fail to halt the intended attack, then the attack would result in one or more outcomes. Outcomes ranged from relatively minor to catastrophic levels. The above mentioned four elements described the targets' overall vulnerability and were scored by the expert team.
The availability of a target measured its presence and predictability as it relates to an enemy's ability to plan and conduct an attack. The accessibility of a target, evaluated its physical deterrence (
Each vulnerability type was scored over five levels of magnitude (1-5—lowest to highest). Again, scoring benchmarks were used to help ensure consistency. Each level of magnitude in every vulnerability category was assigned a probability of allowing an attack mode to proceed. The probability for each vulnerability category was factored, along with the threat probability, in risk calculations to determine the probability term of the risk equation. The individual probabilities were then multiplied together to derive the overall probability assessment for the target/attack scenario under consideration.
The term “consequence” is the estimation of adverse effect from the target/attack scenario and is an important consideration in risk evaluation and security planning. Six categories of effects were considered in evaluating the consequence of an attack: death/injury, economic, environmental, national defense, symbolic effect, and secondary (follow-on) national security threat. Inherent in this consideration was the criticality of the target. For each effect category, five levels of severity were described, and scoring benchmarks are provided. Unlike vulnerability, each severity level was assigned a common consequence value for use in risk calculations. For example, the most severe economic impact consequences were considered equivalent to the most severe death/injury and symbolic effect consequences. The selected level for each factor was then converted to a representative value of potential loss for the consequence factor. These consequence scores were then summed across all appropriate categories to develop the consequence values for the target/attack scenario combination.
The estimated probability and consequence values were multiplied to calculate the overall risk for each target/attack scenario. This is essentially an estimate of the expected losses should a specific target/attack scenario occur.
The following graph is a demonstration of the type of the relative-risk results the N-RAT gave. Specific results, including scores, have been designated as sensitive security information (SSI). This graph simply displays the relationship between some types/classes of vessels and facilities or port infrastructure based on their relative risk. In each line, the parenthetical (I) and (D) stands for “international” or “domestic,” respectively.
Below is a summary of the application requirements for these interim rules based on the N-RAT results:
The N-RAT results focused on individual vessel types and facilities subject to the authority of the Coast Guard. Scenarios were also developed that involved port transportation infrastructure that is vital to the port communities such as bridges, channel openings, and tunnels. This evaluation led to the conclusion that many structures within a port are also at risk of a transportation security incident and therefore should be covered by security measures. Therefore, we determined it would be appropriate to include specific guidance in part 103 to have the Area Maritime Security (AMS) Plan address these types of transportation infrastructure as well as those smaller vessels or facilities that fall below the transportation security incident threshold. This application for the AMS ensures all maritime concerns are assessed and security is systematically evaluated nationwide.
The N-RAT results indicate the following vessel types are at a high risk of a transportation security incident and therefore are required to meet specific security measures as laid out in part 104 of subchapter H:
• All ships, both cargo and passenger, that are subject to SOLAS;
• All vessels greater than 100 gross register tons that are subject to 46 CFR subchapter I (this includes vessels on the Great Lakes);
• All barges subject to 46 CFR subchapter I engaged on an international voyage;
• All domestic passenger vessels subject to 46 CFR subchapters H and K;
• All barges, regardless of route, which are subject to 46 CFR subchapter D and O;
• All tank ships, regardless of route, which are subject to 46 CFR subchapters D and O;
• All Mobile Offshore Drilling Units (MODUs) subject to 46 CFR subchapter I-A;
• All vessels subject to 46 CFR subchapter L;
• All towing vessels greater than 8 meters in registered length that are engaged in towing barges which are subject to 46 CFR subchapter D & O; and
• All towing vessels greater than 8 meters in registered length that are
The N-RAT results indicate that the following vessel types are at a lower risk of a transportation security incident and are therefore subject to parts 101 through 103 of subchapter H:
• Uninspected vessels, unless otherwise noted;
• Domestic small passenger vessels certificated under 46 CFR subchapter T;
• Barges subject to 46 CFR subchapter I engaged exclusively on domestic voyages;
• Towing vessels engaged in towing 46 CFR subchapter I barges not on international voyages;
• Vessels certificated under 46 CFR subchapter I engaged exclusively on domestic voyages;
• Fleeting tugs or harbor tugs; and
• Other vessels not specifically addressed in part 104 (as an example, recreational vessels).
The inclusion of towing vessels (traditionally included with other uninspected vessels) was done because these vessels interface with and are responsible for the movement of barges that carry higher consequence cargoes, such as Certain Dangerous Cargoes (CDCs). When scored on the N-RAT, the high consequence of the barge cargoes significantly adds to the risk of a transportation security incident for the towing vessel.
The N-RAT was not able to provide the sensitivity needed to assess certain elements of the definition of a transportation security incident. For example, the transportation security incident calls for a determination of what the term “significant loss of life” should be or where the threshold for an “economic disruption in a particular area” should be placed. In order to determine these elements of a transportation security incident, the Coast Guard used the N-RAT model itself as a guide along with a comparison with other transportation modes. We also used the preliminary intermodal comparison work of the other agencies of the DHS (
First, using the N-RAT, we assessed what consequences or combination of consequences would result given a vessel, facility, or port structure that had a high baseline vulnerability. Recalling from the previous N-RAT explanation that the consequence assessment portion of the N-RAT evaluation was based on six categories and five levels (as shown in Table 2), we looked at the numerical results of a scenario when given some vulnerability benefits assumed for implemented AMS Plans, and other general security measures in place for a port.
The results showed that a score of at least one consequence factor at the “Catastrophic” level or a combination of two “High” scores could not be offset by the vulnerability reduction achieved by the AMS Plan or general port security efforts. The risk to these types of vessels, facilities, or port structures would need further vulnerability reduction to get out of the potentially “Catastrophic” or “High” consequence arena. This then, is the threshold that the Coast Guard determined could be considered a transportation security incident.
To further determine the thresholds of a transportation security incident with respect to the “loss for life” category, the Coast Guard compared the potential loss of life between various transportation modes and various operations. To look at the “economic disruption” category of transportation security incident as well as its other elements, we looked at damage and casualty data to determine if comparisons between modes could be used to formulate thresholds based on vessel size.
To compare potential loss of life between transportation modes, we examined probable fatalities given an accident to the air, rail, or maritime mode. The first step in this process included a comparison of the current regulatory and operational thresholds that currently exist in each industry.
In aviation, regulations cover aircraft carrying 20 or more passengers as a commuter airline (14 CFR part 125). Most commercial aircraft are larger than this smaller commuter, with 69 percent of the U.S. market dominated by an aircraft with a capacity of 189 passengers.
In rail, we considered transit service (light, heavy, or commuter) and long-haul rail travel. Light rail can carry up to 150 passengers in each car of the train. Heavy rail cars typically carry 100 passengers, though they can carry twice that many during periods of peak traffic. Commuter rail cars carry an average of 125 passengers, with peak capacities of over 200 passengers per car for certain seating configurations. Inter-city rail passenger coaches typically carry about 80 passengers per car depending on the configuration. The average train length is reported to be 6 to 8 cars.
In the maritime passenger trade, we have small passenger vessels, commuter ferries of all sizes, large passenger vessels, and cruise ships. The average passenger capacity on small passenger vessels is 49. The average capacity for commuter ferries is 587 and for large passenger vessels the average capacity is 1154 passengers.
Looking at casualty statistics for these three modes and different passenger operations, we estimated the probable fatalities given a successful transportation security incident occurred. We assume that, in general, a transportation security incident would have a higher fatality rate than that of an accident because of the hostile motivation behind perpetrators' actions deliberately produce more severe consequences. For aircraft, the more severe airline crashes were used to estimate the transportation security incident fatality rate. The hostile intent
Table 3 shows that per plane/rail-car/vessel, the estimated loss of life from a transportation security incident is estimated to range from a low of 16 per a typical small passenger vessel to a high of 382 for large passenger vessels. The Coast Guard determined that based on the above comparison and the results of the N-RAT vulnerability scores for vessels that result in two “High” consequence scores, that a threshold of 150 passengers is appropriate. We also looked at the N-RAT vulnerability condition for a “Catastrophic” consequence score and determined that added measures were appropriate for vessels carrying 2,000 or more passengers. These additional security measure requirements for larger passenger vessels and the terminals that serve them are justified to offset their elevated risk from a transportation security incident.
The N-RAT was also limited in its sensitivity to identify the vessel gross tonnage that sufficiently pointed to a determination of the terms “economic disruption in a particular area, transportation system disruption, or environmental damage” which are required elements of the transportation security incident definition.
Small, dry-cargo vessels (gross tonnage less than 500) were identified by the N-RAT results as vessels of concern. These vessels, regulated under 46 CFR subchapter I and in the gross tonnage range of 15 to 500, are not required to comply with SOLAS and thus are exempt from ISPS Code requirements. We believe this creates a significant security vulnerability that must be considered and addressed at an appropriate level. To establish the appropriate threshold, we evaluated the risk for a transportation security incident posed by smaller vessels (gross tonnage <500) to determine where a reasonable threshold should be drawn.
The N-RAT results showed a significantly greater risk for vessels of gross tonnage above 100 being involved in a transportation security incident than for smaller vessels. Based on the N-RAT assessment, the smaller vessels (gross tonnage <100) are unlikely to be involved in a transportation security incident because of the limited consequences they are expected to produce due to their limited size and speed. A review of the domestic freight vessels that are documented with gross tonnage under 100 reveals that less than 2 percent of these vessels are capable of causing significant consequences to facilities or other vessels, and that some of these vessels are already regulated under this rule due to the nature of the cargo carried. However, because of their greater dimensions and the trades in which they operate, vessels with gross tonnage above the 100 threshold do present the potential of being involved in a transportation security incident. A limited analysis of potential collision effects leads us to the conclusion that these vessels may not be able to cause catastrophic personnel casualties or environmental damage. However, based on our knowledge of port operations, navigable waterways, and vessel design, construction, and operations, we believe that a significant risk of a transportation security incident (one “Catastrophic” or two or more “High” consequence ratings) exists for vessels with gross tonnage above 100. This is primarily driven by potential impact on the economy, national defense, or secondary national security threat from certain scenarios. Examples of these potential effects exist in Coast Guard accident reports where incidents documenting the blockage of channels in various rivers and ports occurred due to vessel casualties. These blockages resulted in substantial economic impacts as the mobility and commerce within the port was seriously affected.
As for the difference in the Convention Measurement tonnage and the Regulatory Measurement tonnage within this analysis, we used the Regulatory Measurement where
Based on the above, we believe that 100 gross register tons (and not 15 gross register tons) is a reasonable lower end for applicability for dry-cargo vessels. We are also regulating those vessels in the range of 100-500 gross register tons that are not covered by SOLAS and are therefore exempt from ISPS Code requirements.
The applicability thresholds used for the implementation of AIS on certain vessels is a separate issue, for which we did not use the N-RAT. The MTSA clearly mandates AIS applicability in 46 U.S.C. 70114 and the installation dates are included in MTSA sec. 102(e). The thresholds for vessels: a self-propelled commercial vessel of at least 65 feet in overall length; or a passenger vessel, carrying more than a number of passengers for hire determined by the Secretary; or a towing vessel of more than 26 feet in overall length and 600 horsepower; as well as any other vessel for which the Secretary decides that an AIS is necessary for the safe navigation of the vessel, are related to both safety and security. Thus the thresholds are somewhat lower than those discussed above for vessels at a high risk of a transportation security incident.
The N-RAT results indicate that the following facilities are at a high risk of a transportation security incident and therefore are required to meet specific security measures as laid out in part 105 of subchapter H:
• Facilities that handle cargo subject to 33 CFR parts 126, 127, or 154;
• Facilities that receive vessels certified to carry more than 150 passengers;
• Facilities that receive commercial vessels greater than 100 gross register tons on international voyages, including vessels solely navigating the Great Lakes; and
• Fleeting facilities/areas for barges carrying cargoes in bulk, regulated by 46 CFR subchapter D or O or carrying certain dangerous cargoes.
The N-RAT results indicate that the following facility types are at a lower risk of a transportation security incident and are therefore subject to parts 101 through 103 of subchapter H:
• Facilities adjacent to the navigable water that handle/store cargo that is hazardous or a pollutant;
• Facilities that receive only domestic bulk non-hazardous cargo;
• Facilities that service a vessel that carries fewer than 150 passengers;
• Fleeting facilities/areas that service barges subject only to 46 CFR subchapter I or barges that are certified to be gas-free that are certificated under subchapter D and O; and
• Oil and natural gas production, exploration, or development facilities regulated by 33 CFR part 154 that engage solely in the exploration, development, or production of oil and natural gas; and do not meet or exceed the operating conditions in § 106.105 of the Outer Continental Shelf (OCS) Facilities rulemaking published elsewhere in today's
• Facilities supporting the production, exploration, or development of oil and natural gas regulated by 33 CFR parts 126 or 154 that engage solely in the support of exploration, development, or production of oil and natural gas; and transport or store quantities of hazardous materials that do not meet and exceed those specified in 49 CFR 172.800(b)(1)-(6); or stores less than 42,000 gallons of cargo regulated by 33 CFR part 154;
• Mobile facilities regulated by 33 CFR part 154;
• Isolated facilities that receive materials regulated by 33 CFR parts 126 or 154 by vessels due to the lack of road access to the facilities and do not distribute the material through secondary marine transfers; and
• Other facilities not specifically addressed in part 105.
As mentioned in the above
It is important to note the N-RAT focused on the potential for certain vessels and facilities to be involved in a marine-related incident, and its results reflect that relative risk. The Coast Guard took this approach because of our longstanding familiarity with vessel and waterfront facilities, because it was a logical follow-on to the PS-RAT efforts of the COTPs, and because it allowed us to meet the initial mandates of the MTSA to promulgate these interim rules as soon as practicable. However, the MTSA is broader and permits direct regulation of any vessel and facility that may be involved in a transportation security incident, as that term is broadly defined. This could include those facilities and infrastructure not traditionally regulated by the Coast Guard, such as facilities that do not have accommodations for vessels but are nonetheless on or adjacent to waters subject to the jurisdiction of the U.S. The Coast Guard is currently working with other agencies of DHS (
The N-RAT results indicate that the following OCS facilities are at a high risk of a transportation security incident and are therefore subject to part 106 of subchapter H:
• OCS facilities that produce 100 thousand barrels of oil or 200 million cubic feet of natural gas per day or regularly host more than 150 personnel on a daily basis (may exceed this number for periods of time not in excess of 90 days).
The N-RAT results indicate that the following OCS facilities are at a lower risk of a transportation security incident and are therefore subject to parts 101 through 103 of subchapter H:
• Unmanned platforms and lower production level platforms.
The N-RAT was also not able to provide sensitivity to the OCS facility size or production level that sufficiently pointed to a determination of the terms “significant loss of life, economic disruption in a particular area, transportation system disruption, or environmental damage” which are required elements of the transportation security incident definition. To develop this threshold, we worked in conjunction with the Minerals Management Service (MMS) to compare OCS facility production rates and operations throughout the industry. The 150-person threshold was also used to remain consistent with the vessel and facility thresholds. Those OCS facilities that do not fall within the rather narrow parameters of this threshold should consider security measures. We will continue to work with the MMS to validate this threshold as the results of the other agencies of DHS (
While the N-RAT is a very useful tool and offers an excellent way to collect and organize expert judgments about security risk issues, it is not perfect. One limitation is that the quality of the results depends directly on the knowledge and expertise of the expert assessors. Inexperienced personnel with limited perspectives will produce results with limited value. It is essential that seasoned evaluators with a broad experience base be used to ensure full consideration of multiple aspects of the issues. The Coast Guard assessment teams included mid-career and senior professionals with experience in ship design, construction and operation, hazardous materials and facility inspections as well as waterways management and port operations.
Another limitation of the N-RAT is that it looks at risk in a relative way. The N-RAT is considered a “relative risk-indexing” tool, meaning that it is only useful in comparing scenarios evaluated with the tool. The N-RAT does not provide a measure of absolute risk that can be compared to other situations not evaluated in this tool.
A third limitation is that the N-RAT is unable to measure all of the benefits attributable to intelligence or information gathering initiatives, which are commonly called “Maritime Domain Awareness (MDA) initiatives.” Measures such as AIS increase awareness and may provide earlier detection or even serve as a deterrent to a transportation security incident, but the assessment tool is unable to capture this effect based on the factors evaluated and the sensitivity of the rating scales. Increased awareness by itself does not decrease the threat or vulnerability at a measurable level subject to the sensitivities of the model. Therefore, the expert panel was unable to account for all of the benefits we believe should be derived from specific MDA initiatives.
Since the N-RAT results highlight the worst-credible case scenarios, a fourth limitation is that the listed results are not sensitive to all scenarios, such as a high profile historically-based incident. We know that small boats loaded with explosives were used as weapons to attack the USS COLE and the tank ship LIMBURG. We cannot discount the possibility of this type of incident in the U.S. or against U.S. vessels outside of the U.S. It is our belief that the best means of deterring such an incident, to the maximum extent practical, is to require certain facilities used in maritime commerce to conduct an assessment of their vulnerability to being used as a staging area for terrorist activities. These facilities would then construct a detailed plan to control access to the facility, permitting the movement or entrance of only authorized persons and cargoes onto and through the facility. This plan will enable the facility to have increased vigilance, awareness and control over those vessels and persons that are served by the facility. We also believe the possibility of a “COLE-like” incident can be reduced by requiring vessels that would likely be the target of such an attack to likewise assess their vulnerability to such an incident and similarly develop a security plan. This plan would include procedures for security monitoring and increased security vigilance, including security with respect to vessel-to-vessel activities. In addition, vessel and facility plans should include how they would address recreational vessels approaching that they reasonably suspect may pose a threat to them. These facility and vessel security requirements will be complemented by the development of an AMS Plan involving port stakeholders. This plan will address the security measures to be implemented for all port activities at different security levels. The control and movement of vessels, such as small vessels that could be used as a weapon, will be considered and addressed in the AMS Plan. These controls would include such measures as the possible restriction of all small vessel movements, the implementation and through enforcement of security zones and the coordination of all security patrols in the port.
Lastly, the threat, vulnerability, and consequence scores each have discrete values associated with them. Because there were only 5 scores (1 through 5) for each input variable, the level of resolution (or “granularity”) of the risk calculations was limited. This was especially true when assessing the impact of risk reduction initiatives or actions. In many cases, a new initiative or action may have a distinct improvement, but not enough to change a score assignment (
As mentioned, the notice of meeting published on December 30, 2002, requested comments on requirements that align domestic maritime security requirements with the ISPS Code and recent SOLAS amendments, to comply with section 102 (Port Security) of the MTSA, 2002.
Commenters voiced the desire to ensure we align the maritime security requirements with other agencies and States that have already tightened security. We have been working with all federal agencies that have security or response related functions and in multiple venues to facilitate the various security initiatives related to homeland security. The joint team that worked on the interim rules found in today's
On a related issue, commenters requested to know how other cargo-handling requirements or proposals by other agencies would affect the maritime industry. Cargo security measures are addressed in 46 U.S.C. 70116, Secure Systems of Transportation, and Section 111, Performance Standards, of the MTSA. Section 111 has an implementation date of January 1, 2004. Other agencies of DHS (
The information gleaned from the OSC effort, as well as information gleaned from other cargo security and productivity initiatives and from experience in other cargo security programs, will form the foundation of forthcoming cargo security regulations. We recognize that, although cargo security will be a component in vessel and facility security plans, facilities and vessels will not want to create and install cargo security technologies in advance of these cargo security requirements, out of a concern that the technologies they create or install will not meet the requirements. Guidelines will be developed and provided for acceptable cargo security measures that can be used until the cargo security requirements are promulgated. These guidelines will address procedural measures.
Again, related to interagency coordination, some commenters stressed the need to harmonize any requirements with the Research and Special Program Administration (RSPA). RSPA published a final rule amending 49 CFR part 172 in the
Finally, the Environmental Protection Agency (EPA) also has existing regulations for non-transportation-related onshore facilities and certain offshore facilities to prevent the discharge of oil and to prepare plans for responding to discharges of oil or substantial threats of discharges of oil. The Coast Guard and the EPA will continue to explore the impacts of these maritime security interim rules on facilities under EPA jurisdiction and will clarify the impacts of the maritime security regulations, if any, before publishing a final rule. These maritime security interim rules are not intended to require the owner or operator of a facility under EPA jurisdiction to amend the Facility Response Plan (FRP) or Spill Prevention Control and Countermeasure (SPCC) Plan. We do not intend to require the National Schedule Coordination Committee to modify the existing schedule for exercise. Additionally, we do not intend to require the owner or operator of a facility under EPA jurisdiction to amend the facility's EPA-approved training program, exercises, or drills or record keeping of such training, exercises, or drills. The maritime security regulations for training, exercises, drills, and record keeping in these interim rules are strictly within the purview of the new legislative mandate for security and may be combined with existing training, exercises, or drills, where appropriate.
Commenters requested that we recognize industry-developed standards that achieve an equivalent level of security to the SOLAS and ISPS Code requirements. We have been working on
Commenters requested that the requirements be flexible enough to tailor measures to different industries and be performance based rather than prescriptive. Fundamental to the requirements for security has been the concept of a security assessment. This assessment is specifically linked to security plans and is focused on a vessel, facility, or port as a unique operation. Thus, the assessment results drive the security measures implemented to set or increase each security level and, thus, make each plan unique as well as performance-based. The enforcement of security measures is always difficult when dealing with a purely performance-based system, as opposed to a prescriptive one; however, in this case, it will be clear whether access control, for example, exists or does not. The requirements contained in the maritime security interim rules found in today's
Commenters requested that the requirements be consistent among ports. We recognized the need for industry to have requirements tailored to their specific and diverse operations yet be afforded the consistency of the larger port-wide security measures. This said, no port has the same critical operations or geographic constraints, which make mandating the same security measures ineffective. However, we believe the framework of assessments and plans as laid out in the maritime security interim rules found in today's
Commenters raised concern on the restrictions to mariner shore leave, detention aboard their vessels, and service provider access to mariners, such as port chaplains, union representatives, etc. This is a very important issue and it is addressed in the Vessel and Facility Security interim rules found elsewhere in today's
Commenters raised concern over the high cost of requirements and disparity between federal funds for the maritime versus the aviation sectors. We understand that many believe the cost of security is overwhelming. The requirements in this set of interim rules focus on those on those vessels and facilities that are at a higher risk of having a transportation security incident. We have developed flexible measures to meet the security requirements. The disparity between funding available between transportation modes is outside the scope of this rulemaking. There are, however, programs, such as the Maritime Security Grant Program, which is funded through the Transportation Security Administration and jointly administered by the Maritime Administration, Coast Guard and the Transportation Security Administration. This grant program can provide some funding for owners and operators regulated under subchapter H. An excellent reference for this program can be found at
Commenters voiced a desire to have the Transportation Security Card requirements promulgated quickly. As discussed under issue number 37 in the
Commenters requested that we provide guidelines on training requirements for vessel and facility security. The ISPS Code specifies the designation of a Company Security Officer, Ship Security Officer and a Port Facility Security Officer and details their required competencies, duties, and responsibilities. To supplement these
In addition to the ongoing international training initiatives, section 109 of the MTSA requires the Secretary of Transportation to develop standards and curricula to allow for the education, training, and certification of maritime security personnel. This task has been delegated to MARAD, which has charged a group of experts at the U.S. Merchant Marine Academy (USMMA) with developing the training requirements for the three security officer positions as well as the requirements for any other personnel with security duties. The USMMA working group has developed a base-level curriculum for maritime security education. This curriculum was refined through public outreach that included an international conference hosted by MARAD at the USMMA on March 20, 2003.
The “Conference on Maritime Security Standards and Curricula” drew 136 delegates from the U.S. and numerous other countries. The meeting focused on the framework for seven model courses that had been provided to attendees prior to the conference. The seven model course frameworks discussed were:
1. “Vessel Security Officer;”
2. “Company Security Officer;”
3. “Facility Security Officer;”
4. “Maritime Security for Vessel Personnel with Specific Security Duties;”
5. “Maritime Security for Facility Personnel with Specific Security Duties;”
6. “Maritime Security for Military, Security and Law Enforcement Personnel;” and
7. “Maritime Security Awareness.”
The discussions also included issues related to certification of personnel and quality control of training courses. A panel consisting of the USMMA working group members and representatives from the Coast Guard, TSA and MARAD also responded to questions and comments from participants as part of the conference forum.
Ongoing interagency collaboration and efforts to harmonize international and U.S. requirements have led to the expansion of this project to include the development of three model maritime security courses for the IMO. In cooperation with the government of India, the working group prepared and submitted draft model courses for the Ship Security Officer, the Company Security Officer, and the Port Facility Security Officer to the IMO by May 30, 2003. Following review by an IMO validation panel, the finalized courses will be forwarded to the IMO not later than September 8, 2003.
Therefore, the requirements in the vessel security and facility security interim rules found elsewhere in today's
Commenters requested that the process used to determine the applicability of security requirements and their value be explained. We have discussed the initial assessment and subsequent application of these interim rules in the
Some commenters were concerned about the idea of applying international standards to domestic trade. In the public notice of meeting, we included an appendix that had the ISPS Code and the new security-related SOLAS amendments. We took this approach to provide the public with an opportunity to comment on a body of work that substantially represented the international security requirements and current best practices for maritime security. As stated previously, we had been working on security-related issues and discussed or required security measures on vessels and facilities since well before the development of the ISPS Code or the MTSA. We took these requirements and discussions further by proposing comprehensive measures for security in our submission to the MSC76 IMO meeting in May 2002. These proposals were developed with respect to security as a system, because fundamental security must be universal—terrorists attack foreign and domestic targets without bias. The flexibility to tailor security plans and measures based on a security assessment is a key to ensuring that a vessel, on either a domestic or non-domestic route, has operational security sufficient to deter, to the maximum extent practical, a transportation security incident. The fact that domestic transportation links are as viable as international avenues for a terrorist attack makes this systems approach even more important,
In the notice, we specifically requested response to 40 issues, helping to shape the regulations published in all six interim rules. A discussion of the responses to each of the issues raised in the notice follows.
1.
Many commenters viewed as imperative that the threat and security level information be provided quickly and by all means available, including secure Web sites or e-mail. They also felt that the information should be provided to all components of the maritime community, including recreational boaters and shore-side personnel, should be formalized, and should be provided proactively. In this interim rule, the process for this communication is formalized through the AMS Plan, which will include all forms of communication available to the COTP in coordination with the private sector, State, local, and Federal agencies. Therefore, a standard communication method will be established across the nation, complemented with regional methods to ensure wide dissemination of threat information and security requirements.
Other commenters suggested that the MARSEC Level should be directly linked to the HSAS at all levels. This contrasts with the comments of many others who voiced a concern about changing levels due to the HSAS system, based on threat information not specifically related to the maritime community nor a specific region. Therefore, they suggested adopting a separate security level mechanism or incorporating some flexibility into the alignment of HSAS to the MARSEC Level. We stated in our notice of meeting that we were considering a link with the HSAS levels and were implementing the MARSEC Level system to ensure both flexibility for the maritime community, as well as to align with the 3-level international security level system. This remains our intent and we have coordinated these alignments with DHS. The regulations lay out further discussion of the MARSEC Levels and their alignment with HSAS Threat Conditions (
Some commenters stressed that coordination with other agencies was needed, and that two-way communications was important to the security of the waterfront and its operations, as is the ability to report incidents that are out of the ordinary. Concern was also noted by some that the communications procedures should directly inform the Facility Security Officers, the Company Security Officers, and the Vessel Security Officers while underway, in lay up, or after hours, since toll-free numbers do not always work from overseas locations or are sometimes reported as busy. We have included other means for communication at the local and national levels in this interim rule to provide alternative means for providing information on suspicious activity. We are working to develop advanced information technologies to interconnect agencies, organizations, vessels, and personnel. The advanced information technologies will facilitate the rapid transmission of critical safety and security information both vertically and horizontally. Additionally, we expect to build a strong communication process with Company Security Officers, Vessel Security Officers, and Facility Security Officers at both the national and area levels once these Officers are designated and the owner or operator provides their contact information to us.
2.
Some comments indicated that class societies, while possibly suitable for RSO delegation, should not be considered because of the aggressive timeline to review assessments and plans. Similarly, others indicated their strong support for the Coast Guard to retain all approval authorities, citing that delegation would defeat the purpose and intent of the MTSA. In contrast, some commenters disagreed, stating that the Coast Guard did not have adequate resources. They requested that the Coast Guard delegate its authority to an RSO, establish a timeline for when we would begin consideration of RSOs, and provide instructions on how RSOs should request consideration. We have retained in this regulation the intent to keep the approval of assessments, plans, and other security measures as a Coast Guard function. While it is understandable that organizations within the maritime community would seek to have their security expertise recognized, the Coast Guard believes it is imperative to maritime and homeland security to ensure consistent application of the requirements found in the interim rules and will conduct the required reviews and approvals without delegation, at this time. A timeline and further delegation discussions may be provided, once a stable, nationwide foundation for maritime security has been established.
As for the adequacy of the list of RSO competencies provided in the ISPS Code, part B, some commenters considered it an adequate list, while others indicated that there should be additional qualifications, such as a familiarity with national and local security plans. We believe this list encompasses the essential qualifications and competencies of organizations that wish to assist the maritime industry in the development of their security assessments and plans. The comment on knowledge of local security plans has merit and should be considered in addition to the ISPS Code, part B, competencies by those hiring security personnel.
3.
Several commenters requested that we develop standards or at least an outline of what they should expect from a company that professes maritime security competency and many also stated that the ISPS Code, part B, list was sufficient. Some commenters went further to suggest that we put this standard into guidance rather than regulations or leave it to the trade organizations to develop, because of concern over rigid requirements favoring larger companies and, therefore, limiting the flexibility of owners and operators. Many commenters did not believe the Coast Guard needed to vet these maritime security organizations, however, many suggested that examples of acceptable plans would be helpful to smaller operators. In contrast, other commenters stated that a list of organizations which meet industry or trade organization standards should be provided, and some went further to recommend the Coast Guard certify organizations, thus creating the basis for a new industry. Finally, some commenters requested that we develop and mandate industry standards for waterborne security and armed guards.
In these interim rules, we reference ISPS Code, part B, paragraph 4.5, as a list of competencies all owners and operators should use to guide their decision on hiring a company to assist with meeting the regulations. We may provide further guidance on competencies for maritime security organizations, as necessary, but do not intend to list organizations, provide standards within the regulations, or certify organizations. We consider standards and requirements for waterborne security and armed guards a subset of the above discussion. While these security measures may be appropriate for some vessels or facilities at a particular MARSEC Level, they are not necessary for all situations. Thus,
4.
Many commenters suggested that alternatives and equivalency determinations were needed to ensure compliance, yet allow for the unique international operations within some regions or in specific industries. Many commenters also supported the idea of a “master plan” for their vessel fleet or facilities that would eliminate some work and still effectively capture the security measures for the individual vessels or facilities covered. Some also asked if an appeals process would be included so a higher authority could reconsider equivalency and alternative determinations. A few commenters requested that this provision be delegated to the local level rather than be done at Coast Guard Headquarters to account for unique regional operations. Many commenters also stated that the submission process, as it exists for safety (46 CFR 70.15) or subchapter W, is adequate as long as it is timely.
We have included the alternatives and equivalency provisions in this interim rule to provide vessel and facility owners and operators the flexibility to request them. However, they will only be approved if they are determined to be equivalent to the security requirements in subchapter H and 33 CFR parts 120 and 128, if applicable. The provisions of submission and the appeal process are also included in the regulations presented in this interim rule. Because the equivalency and alternative determinations are obligations under SOLAS and the ISPS Code, the Coast Guard is placing the decision to accept equivalents and alternatives at the Commandant level, at this time. This will ensure consistency and retain control over the U.S. flag administration obligation. As always, State, local and regional expertise will be used when reviewing alternatives and equivalencies, as appropriate for the proposals.
5.
An overwhelming number of commenters strongly supported this proposal and voiced endorsements for various industry standards, both for vessels and facilities, which are either published and in use or currently under development. Some commenters recommended that industry standards for assessments already exist that could be determined equivalent to the assessment requirements proposed in the Notice of Meeting and should be considered. Many commenters indicated they intend to submit their standards for approval and will also seek approval for plans or assessments already conducted to meet State requirements. Several commenters also stated that an independent audit should not be required if the vessel is already inspected by the Coast Guard. Many commenters also requested that the industry standards or alternatives be approved at the local or regional level rather than at the Commandant level. Additionally, some commenters expressed the desire to have the industry standards reflect lower security measures requirements that would not be equivalent to those discussed in the Notice of Meeting.
We have considered the acceptance of industry standards to be a key element of implementing the requirements of the MTSA. The public meeting response to our questions on this issue indicates that the industry is willing to tailor security standards to their industries' needs and work with us to implement them. The issue of equivalency is fundamental to implementing an effective system of maritime security. Therefore, equivalency is a requirement for the acceptance of industry standards in the regulations presented in this interim rule. When a security assessment is conducted on a vessel or facility operation, the resultant security measures that can logically mitigate and meet the security risks are tailored to the situation. Thus, an industry standard for the small passenger industry will be different from the industry standard for chemical ships, simply based on the difference in their respective vulnerabilities and the associated consequence of a transportation security incident. To accommodate this wide diversity of industry standards and substantiate their equivalency to the requirements in subchapter H, the review and approval of industry standards will remain at the Commandant level. However, we intend to coordinate review of industry proposals with the local and regional levels, if appropriate. In addition, standards already developed to meet State requirements or other industry concerns may be submitted for an equivalency review and subsequently approved under the requirements of this section, if found appropriate. In the requirements of this interim rule, we have titled this industry standard concept, “Alternative Security Programs,” because it is a broader term that implies a program or system that is more inclusive,
6.
In the notice of meeting, we requested comments addressing recommendations for those operations or security levels when the DoS would be appropriate to facilitate coordination of security measures between a vessel and facility. As requested, we received comments addressing our question. Comments supported the intent of the requirements but expressed confusion at when it was needed. In particular, ferry operators questioned if they would be required to submit a DoS for every transit. Other commenters suggested that the DoS only be required at higher MARSEC Levels (2 and 3) for specific operations and are not appropriate for domestic vessels. Additionally, commenters suggested that transfers that are brief or involve barges should not have DoS requirements.
We believe a DoS is a valuable security communication tool for vessels, facilities and for COTPs. While a DoS is generally a MARSEC Levels 2 or 3 tool, there are certain operations that benefit from added coordination between the facility and the vessel. In the AMS requirements found elsewhere in today's
We also requested comments in our public notice on how long a DoS should be kept on file (we suggested 2 years) and asked how the format of a DoS should be promulgated (guidance or regulation). In addition, the ISPS Code allows flag administrations to give guidance on when their ships should request a DoS during a port call or when interacting with other vessels. Many commenters suggested that a 2-year time frame for record retention was much too long. Many commenters also noted that they preferred guidance rather than regulation on the format for a DoS. Based on comments we received and to further align with the ISPS Code requirements, the Vessel Security requirements found elsewhere in today's
7.
The majority of commenters supported a designation for all security-related materials to ensure this information is not available to the general public and some requested a higher security designation such as what the Defense Department is using. Some other commenters did not want a security-related designation because they wished to ensure the Freedom of Information Act remained primary to all information. Other commenters suggested that individuals should have clearances to see this material or that the Coast Guard be the only agency allowed to review the material. In contrast, some State and local government representatives stated their wish to have access to the material and wanted us to include provisions for this access. Additionally, some commenters stated that a federal preemption clause was needed for this designation to ensure that if material was protected from disclosure at the federal level, a loophole at the State or regional level did not compromise its security.
Security-related information has traditionally not been in the public forum since it inherently puts at risk the very system that is being protected. Understanding the imperative need to safeguard maritime security material to ensure its dissemination does not make the vessel, facility, or port vulnerable to a transportation security incident, we have included provisions in this interim rule noting this type of material is to be designated as SSI in accordance with 49 CFR part 1520. Information designated as SSI is generally exempt under FOIA, and we believe that State disclosure laws that conflict with 49 CFR part 1520 are preempted by that regulation.
We did not believe that a security designation above SSI was needed for this material however, we did include provisions in this interim rule for a COTP to designate a higher level of security if there are provisions in the AMS Plan that indicate a higher level is appropriate. Access to the AMS Plan will be limited to those on the Area Maritime Security (AMS) Committee that have agreed to protect the material in a manner appropriate to its security sensitivity and have a need to know the material. Guidance on SSI and its use will be issued to assist AMS Committee members, consistent with 49 CFR part 1520. For material that is designated at a level higher than SSI, the COTP will screen AMS Committee members for appropriate clearances and take precautions appropriate to the material's sensitivity. Individuals and Federal agencies outside those with transportation oversight authority will not be allowed to view plans or assessments of vessels and facilities unless circumstances provide a need to view it. As stated in the Vessel Security interim rule found elsewhere in today's
8.
The comments we received on the committee's membership included a very broad range of suggestions. Some commenters suggested that only law enforcement entities and relevant government agencies participate. In contrast, many commenters requested that the committee's membership be truly inclusive—representing the smallest of recreational boater, to the largest facility; all types of shore-side service providers, labor representatives, and the myriad government agencies on all levels. Many comments stated the COTP should head the committee and a few comments stated that the COTP and the Port Authority should co-chair the committee.
Commenters suggested that COTPs could ensure participation in the committees by widely disseminating notices about committee meetings, have general public meetings, and hold working meetings to develop security plans. Some commenters recommended a small executive decision-making group with a large inclusive group for input. Some commenters felt there should be Port Security Committees in coastal ports only and voluntary participation with public meetings. Others added that Port Security Committees should be limited to port users and those with security expertise.
Because the AMS Plan is pivotal to the U.S. implementation of the international security requirements and is also key to our MTSA mandates, we have included provisions prescribing the development of AMS Plans, committees, and other port-level security measures in the “Area Maritime Security” (USCG-2003-14733) interim rule found elsewhere in today's
9.
Several commenters stated that they felt that, with the assistance of the local Coast Guard, there would be adequate expertise within the port area to conduct a port wide assessment. In contrast a few commenters stated that the Coast Guard or a third party should conduct the assessments because the knowledge level within the port is not sufficient. Other commenters stated they did not think certain ports even needed to do an assessment because of the port's location. Several commenters also noted that the Coast Guard, both nationally and locally, has already conducted port security assessments.
Our COTPs have been working with Port Security Committees and Harbor Safety Committees successfully for some time. From this positive and participatory interaction, we strongly believe that the knowledge and expertise to successfully accomplish an AMS assessment currently resides in each port, notably within the membership of the current Port Security Committee. We believe that every port needs to conduct a port security assessment regardless of its location. It is important to remember that the current regulations and the international code are intended to strengthen marine elements of the national transportation system as well as lay out a baseline for each section of the system to attain. It is not our intent for ports that have already undertaken security assessments to have to reinvent the wheel, rather we encourage AMS Committees to take any assessment that has previously been conducted and use it as a reference document.
10.
Many commenters supported the concept of a pre-designated system of waterway and facility restrictions and stated it would be advantageous for planning and preparation. They continued by suggesting that at times of heightened security, we should use existing maritime communications procedures as well as any other means to ensure vessels are advised to hold, or move to designated anchorage outside of port. Other commenters wanted to ensure that the barge and towing industry was consulted on any decisions to restrict the waterway. Some commenters stressed that communication methods of these pre-designations should include the entire maritime community such as recreational boaters and shore-side
As stated previously, the AMS Plan and the supporting committee is an integral part of the port security initiative. Measures that mitigate security risks to the port for each security level will be a main element of the AMS Plan as discussed in the “Area Maritime Security” (USCG-2003-14733) interim rule found elsewhere in today's
11.
We believe that exercises and training are imperative to keeping security measures and plan requirements current. To ensure that the entire port community participates, we want to establish exercise programs that are inclusive and training that is exportable. In the “Area Maritime Security” (USCG-2003-14733) interim rule found elsewhere in today's
12.
Many commenters supported our concept noting the flexibility of using existing standards, such as the ones prepared by the intrusion detection and surveillance industries. A few commenters stated that while they supported using existing standards, they were concerned about conflicts and incompatibility between current security equipment and equipment used for shipboard operations, while several others approved of the flexibility of using equivalent standards and stated that as long as we approved the use of the standard they would submit it as an equivalent standard to the requirements. Other commenters stated that they were against the use of industry standards and feared the Coast Guard would micro-manage vessel security operations.
Traditionally we incorporate by reference equipment standards we feel are appropriate to use in the maritime environment to enable vessel and facility owners and operators the flexibility to use standards they are familiar with as well as ones that are appropriate to meet the requirements. In the maritime security regulations for subchapter H found in today's
13.
Many commenters felt that this provision would clarify the companies' responsibility to the vessel and address any potential manning issues, while a few comments stated that the requirements for a company were “excessive” or that the ISPS Code did not address the requirements needed. Many comments stated that an independent audit of the Vessel Security Plan would be valuable in determining if the company's obligations and responsibilities were addressed and properly implemented.
In regards to the relationship between tows and barges, a large number of comments stated that the towing vessel should be responsible for the security of the barge while it is under their control. Several other comments recommended that security at fleeting areas be regulated.
We support holding the company to security-related obligations that will ensure companies and the vessels communicate on issues related to security, and help to ensure that any problems are resolved in an efficient manner. We believe proper implementation cannot work without the company and the vessel fulfilling their obligations as stated in the ISPS code. The company is essential to ensuring that the right people with the right skills are in the Company Security
We reviewed the concept of an independent audit and have addressed it in the Vessel Security interim rule found in today's
14.
A very large number of commenters addressed the issue of which vessels the regulations should be applicable to. This issue has been discussed in the
Several commenters noted possible alternative measures to be used in meeting the requirements, which are not specifically listed in the ISPS Code. The requirements in this general interim rule give provisions for both vessels and facilities to use Alternative Security Programs to meet the requirements. We will continue to provide feedback to industry, via Internet Web page and public notice, on all Alternative Security Programs that are approved by the Coast Guard (G-MP) as alternatives.
15.
Commenters recommended that we allow industry produced assessment tools, or require all assessments to be conducted by an objective third party, while others requested that we develop a template to be used in a self-assessment process. A few commenters claimed that a security assessment had already been done by the Coast Guard and requested that it be used in place of the required Vessel Security Assessment to avoid duplication of effort.
We strongly support the use of third-party assessments and audits to ensure quality as well as consistency. However, we are not including this provision as a mandatory requirement in the Vessel Security interim rule found elsewhere in today's
16.
We did not receive comments suggesting additional items be addressed in the Vessel Security Plan, but we did receive multiple industry and organization submissions of their standards for consideration as a vessel security plan best practice. Many commenters stated that allowing an existing industry standard to be used would greatly streamline the review process. A number of others asked if we could provide a “model plan” for them to use. Many commenters also requested the acceptance of fleet-wide plans. Several owners also asked if a vessel and a facility, which have an exclusive docking arrangement (one in which no other vessels dock at the facility and the vessel only docks at the facility pier), could submit a uniform vessel/facility security plan.
The strong response and industry standards submitted as examples of best practices lead us to believe that the maritime industry is implementing security measures in many sectors. Many of these industry standards did have “model plans” incorporated into them as a development aid. As discussed previously, we will allow organizations to submit their security programs for consideration as an alternative to the requirements in the vessel security interim rule found elsewhere in today's
17.
Several commenters questioned the consistency of Vessel Security Plans approved by varying COTPs and asked what safeguards would be in place to ensure consistent enforcement for vessels that operate across COTP boundaries. In contrast, many other commenters felt the approval at the local COTP level would ease the process and allow for someone familiar with the vessel's operations to review the Vessel Security Plan. Finally, some commenters were also curious about the procedure for reviewing foreign vessel security plans.
To ensure a consistent approval process, we have decided that the Marine Safety Center (MSC) will review and approve all vessel security plans. This requirement is included in the Vessel Security interim rule, found in today's
It is not our intent to individually approve vessel security plans for foreign SOLAS vessels coming to the U.S. Consistent with our international
However, in certain cases, foreign vessel operators may be required to submit the vessel security plan to the U.S. for approval, as required in the Vessel Security interim rule found elsewhere in today's
18.
Many commenters noted that the standards of the ISPS Code provided more than adequate security measures and could be considered equivalent to the existing 33 CFR part 120 requirements.
Because we are still evaluating the equivalency of 33 CFR 120 to the requirements in the Vessel Security interim rule found elsewhere in today's
19.
Numerous commenters asked that industry standards be accepted for recordkeeping and that companies and vessels be allowed to decide where to keep records. Several commenters questioned the need to keep records for two years, while others stated that there was no need to keep records. Several commenters asked that a format not be specified but that the Coast Guard provide clear guidance on what type of information should be kept.
We believe that industries have developed suitable internal guidance for keeping records. These records are essential to ensuring compliance and for this reason we are requiring security records be maintained for 2 years. Specific guidance on what type of information must be kept is included in the Vessel Security interim rule found in today's
20.
Several commenters stated that it was reasonable for the company to train and certificate the Company Security Officer, while other commenters believed it was a conflict of interest. Others commented on whether records should even be kept; some stated that no records should be kept and some recommended that the records should be kept for a period of 1 to 3 years.
We recognize there are no approved courses for the Company Security Officer at this time. In the absence of approved formal training, we intend to allow companies to certify that personnel holding the Company Security Officer position have received appropriate training or possess the job experience required to fulfill their Company Security Officer duties, based on the requirements in the Vessel Security interim rule found in today's
We believe that the Company Security Officer's participation in exercises is critical to improving security. In order to ensure the Company Security Officer has participated in appropriate port-level exercises, we are requiring records, including a list of participants, to be kept for 2 years.
In addition to the questions we asked in the notice of meeting, we received several comments outside of those questions regarding the Company Security Officer. Several commenters expressed confusion about the requirements for a Company Security Officer. To clarify, a company with a large fleet may decide to group its vessels and assign a Company Security Officer to each group. This company would then have several Company Security Officers, one Company Security Officer per vessel group. While the Company Security Officers are responsible for the security of the vessels in their group, they may not act as Vessel Security Officer, except as exempted by the requirements in Vessel Security interim rule found in today's
21.
Numerous commenters supported allowing company certification and felt formalized training was a good system to certificate personnel. A small group of commenters saw no need for any formalized training or company certification. We did not receive any comments to our request for suggestions for certain classes of vessels being allowed an alternative to a Vessel Security Officer.
We recognize that Vessel Security Officer security training is not currently formalized, however, it would be beneficial as previously discussed in the
22.
Several commenters agreed that the company and its Company Security Officer, Vessel Security Officer, Facility Security Officer or Vessel Master should certificate security officers and train the vessel personnel, while a few commenters saw no need for formalized training. A few commenters also stated that the drill and exercise requirements were excessive. Several commenters recommended we provide specific requirements on the type of information that should be recorded, but not require a specific format for record keeping.
As previously stated, there are no approved courses for vessel personnel. In the absence of approved formal training, we intend to allow companies, Vessel Masters, Vessel Security Officers, Facility Security Officers, or Company Security Officers to certify that personnel holding a security position have received the training required to fulfill their security duties.
When training is developed, we will reassess the training and certification requirements in the Vessel Security interim rule found in today's
We have included the specific requirements in the Vessel Security interim rule, found in today's
We believe it is imperative that exercises and drills be conducted to ensure the plans are current and that the personnel are familiar with their responsibilities. Therefore, we have included exercise and drill requirements in the Vessel Security interim rule found in today's
23.
Many commenters suggested that amending a vessel's Certificate of Inspection or a letter stating compliance with security requirements would be adequate. Other commenters recommended allowing third-party certification rather than Coast Guard certification.
We believe certification and verification can be accomplished during a regular Coast Guard Inspection and the vessel's certificate can adequately reflect compliance. In addition, for those uninspected vessels requiring security measures, other provisions for documentation are provided in the Vessel Security interim rule, found elsewhere in today's
24.
Many commenters supported our position of including a provision for accepting national, State, and industry security standards as an equivalent to meet certain security requirements. Several commenters confirmed that those within the security industry, such as the fence and lighting industries, should be allowed to continue providing their own security standards and that in general, companies would meet marine industry-wide standards once the Coast Guard approved them. Finally, many commenters expressed concern that if the Coast Guard prescribed measures to be used as industry standards that the measures would be in excess of what is needed.
Traditionally, we incorporate by reference equipment standards we feel are appropriate to use in the maritime environment to enable vessel and facility owners and operators the flexibility to use standards they are familiar with as well as ones that are appropriate to meet the requirements. In the maritime security regulations for subchapter H found in today's
25.
A large number of commenters addressed the issue of which facilities the regulations should be applicable to. This issue has been discussed in the
We did not receive any comments specifically addressing the request for suggestions on additional requirements that could be used.
Several commenters stated that barge fleeting areas should be covered under the new requirements. To address fleeting areas and the security of the barges that use them we have included fleeting areas in the Facility Security interim rule found in today's
26.
Several commenters stated that they have used NVIC 11-02 titled, “Security Guidelines for Facilities” or similar approaches in developing a company assessment plan and found them easy to follow. Other commenters offered alternatives, such as a Coast Guard facility inspection or a Navy facility security assessment.
We have included requirements for facility assessments in the Facility Security interim rule found elsewhere in today's
27.
We did not receive any comments specifically addressing additional items that the facility security plan should cover, however, many commenters did state that an outline would be a useful tool for development. Several of these commenters went on to say that a “model plan” would prove to be a better guide because it would clearly show our expectations of a plan. Several commenters noted that there are companies that own many facilities and vessels, and asked if one combined security plan could be submitted to avoid redundancies in submissions.
The strong response and industry standards submitted as examples of best practices lead us to believe that the maritime community is implementing security measures in many sectors. Many of these industry standards did have “model plans” incorporated into them as a development aid. As discussed previously, we will allow organizations to submit their security programs for consideration as an alternative to the requirements in Facility Security interim rule found elsewhere in today's
28.
There was large support for the local COTP to approve facility security plans. Some commenters asked how the Coast Guard would ensure consistency across COTP zones. Several commenters approved of the format Coast Guard presented, but did not want a mandated format.
As stated in the notice of meeting, we intend for the COTP to approve facility security plans and we will also work to ensure there is consistency between COTP zones. The Facility Security interim rule found elsewhere in today's
29.
Many commenters supported our position on keeping records for 2 years, while others questioned it and some opposed the concept of maintaining these records at all. Numerous commenters asked that industry standards be accepted or that companies and facilities be allowed to decide where to keep records. Several commenters requested specific guidance on the type of information that should be kept, but did want the format not be specified. Some commenters proposed that third parties be required for record keeping.
We believe that industries have developed suitable internal guidance for keeping records. These records essential to ensuring compliance and for this reason we are requiring security records be maintained for 2 years. Specific guidance on what type of information must be kept is included in the Facility Security interim rule found in today's
30.
The majority of the commenters stated that companies should be allowed to verify qualifications and certificate Facility Security Officers. A few commenters felt it was a conflict of interest for the company to certificate a Facility Security Officer as meeting the knowledge level. We also received many comments about required formal training; some of the comments were in favor and some felt it was not necessary. Several commenters submitted examples of cases where the Facility Security Officer could be responsible for more than one facility. Finally, many commenters stated that the record keeping requirements were reasonable and could be easily instituted, while others stated this task would be too time consuming.
We recognize that Facility Security Officer security training is not currently formalized, however, it would be beneficial as previously discussed in the
We agree that a Facility Security Officer could oversee the security operations at more than one facility, where facility security plans are very similar because of similar operations and in close proximity of each other. This decision will be left to the local COTP when plans are being approved.
31.
Several commenters recommended that we provide specific guidance on the type of information that should be recorded, but not require a specific format for the recordkeeping. Other commenters stated that the drill and exercise requirements were excessive.
As previously stated, there are no approved courses for facility personnel. In the absence of approved formal training, we intend to allow Facility Security Officers to certify that personnel holding a security position have received the training required to fulfill their security duties.
When training is developed, we will reassess the training and certification requirements in the Facility Security interim rule found in today's
We have included the specific requirements in the Facility Security interim rule, found in today's
We believe it is imperative that exercises and drills be conducted to ensure security plans are current and that the personnel are familiar with their responsibilities. We also believe that the Facility Security Officer's participation in exercises is critical to improving security. Therefore, we have included exercise and drill requirements in the Facility Security interim rule found in today's
32.
A large number of commenters stated that self-certification which reflects a current industry standard and has an independent audit would be appropriate. Other commenters supported the role of the Coast Guard in oversight during the certification process.
We intend to approve all facility security plans and compliance with the requirements in the Facility Security Interim rule found in today's
33.
An extremely large number of comments were received on this issue. Almost every comment strongly supported our concept to not require the hull markings for vessels that only engage in domestic voyages, including all international voyages not subject to SOLAS. Several commenters asked for exemptions for certain vessel types such as historically significant vessels. We believe that the requirement should not be extended to domestic vessels and, in the Vessel Security requirements found elsewhere in today's
34.
An extremely large number of comments were received on this issue. Almost every comment strongly supported the Coast Guard position of not requiring the Continuous Synopsis Record for vessels that only engage in domestic voyages. Many of the comments stated that the information was already on board the vessel and readily available. A few comments were in favor of requiring the information for domestic vessels stating that if the information were in one place it would be useful. While we believe that having the information in one document would be helpful in certain instances, we feel that the value added by requiring another document to be carried on a domestic vessel is not sufficient to do so. The information on the Continuous Synopsis Record is currently maintained on the Certificate of Inspection and the Certificate of Documentation, both of which are required to be on a vessel when it is operating. Therefore, we believe that the requirement should not be extended to domestic vessels and, in the Vessel Security requirements found elsewhere in today's
35.
Many commenters supported extending the requirement to other cargoes and noted the need for alerting us if there were any problems in a quick
While we believe an alert system is a valuable way to communicate to law enforcement if a vessel operator perceives a threat or a security incident is imminent, alternatives can also be used that may also prove effective (such as code words in a routine radio call or a pre-designated call word). Until vessel plans and AMS Plans are established and exercised to evaluate communications and identify gaps, we do not intend to extend this requirement to domestic vessels. However, if future communication exercises prove that alert systems already within the maritime community do not adequately address the appropriate vessels, we may require them in a separate rulemaking. Therefore, in the Vessel Security requirements found elsewhere in today's
36.
Many comments were received which emphasized that fixed and floating platforms should be addressed within the port security plan. However, some commenters disagreed stating that even if included in a port security plan, the degree of security would be very different among platforms due to the potential for different enforcement procedures. Other commenters supported the position that while security measures are appropriate for MODUs and fixed and floating platforms, but believed that any regulations should be carefully tailored to the unique operating environment of the offshore oil and natural gas exploration industry. These commenters also noted that, in their opinion, only a minimal amount of offshore platforms actually pose a viable security risk.
In accordance with the MTSA, we conducted an initial assessment on vessels and U.S. facilities as discussed in the
37.
In addition to the above, the U.S. Government is mandated through the MTSA (46 U.S.C. 70105) to develop and implement a Transportation Security Card to control access to secure areas on a vessel or facility. Other agencies of DHS (
Recognizing that the implementation of the TWIC and the ILO efforts on seafarers identification involve substantial negotiation and development, we requested comments on our existing clarification of regulations notice titled “Maritime Identification Credentials” published in the
Many commenters suggested that we accept merchant mariner documents (MMD) and facility-issued ID cards as a form of identification. Some commenters stated that the existing requirements the Coast Guard set out in its clarification notice are sufficient until the TWIC project is complete. The majority of commenters submitted specific recommendations or suggestions with regard to the TWIC.
Under the current clarification notice, identification such as an MMD or a facility-issued card meeting the requirements set out in the notice are acceptable. Based on the lack of comments requesting amendments to the clarification, we will not amend the requirements at this time. We have incorporated them into this interim rule in order to ensure personal identification is addressed in subchapter H. We will also continue furthering the identification efforts at ILO and through the TWIC project. Comments received on this docket that relate to the TWIC project have been
38.
Several commenters suggested that it would be difficult for the vessel to provide the proper information mentioned in the SOLAS amendments or the ISPS Code. Several other commenters stated that the ANOA would be the proper place for a vessel to affirm that it is in compliance with the ISPS Code. Several comments were submitted with respect to the NOA rulemaking published in the
We have reviewed the issue and currently believe that an alternative process being developed locally could be more effective. We are incorporating notice of arrival requirements in the Vessel Security interim rule found elsewhere in today's
39.
Several commenters stated that accepting the foreign government's approval of a port facility security plan supports the international provisions and places the responsibility in the proper place. Many commenters did ask how the U.S. would keep track of those not meeting their obligations internationally with respect to the port facility requirements in SOLAS Chapter XI-2 and the ISPS Code. Many commenters also stated that the level of compliance of a facility would be directly related to the importance the Contracting Government places upon their obligations to meet the ISPS Code requirements.
It is each Contracting Government's responsibility to ensure compliance; however, it remains our intent to verify the compliance of foreign port facilities in the future and we will work with relevant Contacting Governments to facilitate these evaluations. In the “Area Maritime Security” (USCG-2003-14733) interim final rule found elsewhere in today's
40.
Several commenters stated that they believed small passenger vessels should not be required to carry AIS due to the equipment expense. Several other commenters asked that certain vessel types such as fleeting tugs, commercial assistance tugs, barges, and vessels of gross tonnage less than 300 on domestic voyages be exempted from the regulations. In contrast, a few commenters suggested that all vessels be required to carry AIS. Several other commenters provided specific areas and types of operations where the system
We believe that the MTSA AIS application is consistent with SOLAS and the domestic application is appropriate for the safety and security of navigation within our ports and waterways. Therefore, we have included this application in the AIS interim rule and notice for comment found elsewhere in today's
Several comments were submitted that did not reflect the questions asked; however, a few are germane to the general subject of security. A few commenters asked how the Coast Guard intends to receive the AIS signal. A few commenters questioned the security of AIS and stated that they believed it could be used against a vessel or a port by terrorists; these comments went on to suggest that AIS had no benefit from a security aspect and was not applicable. Several commenters also proposed alternatives to AIS at different MARSEC Levels. Finally, a few commenters strongly suggested that we not require AIS in an interim rule but rather issue a notice of proposed rulemaking to ensure adequate notice and comment for this equipment requirement.
We believe that there are quantifiable security and safety benefits from AIS. We are currently upgrading the Vessel Traffic Service (VTS) systems within the ports to be able to receive and process AIS information. As for the security of AIS, the signal is not secure however; we believe that the benefit of being able to quickly identify and warn mariners about threats directly related to their vessels out weighs the potential security gap presented by AIS's open broadcast nature. We are not considering alternates to AIS for those vessels that are not included in the MTSA requirements but have requested comments on the AIS equipment standards and requirements as well as nationwide implementation in the notice for comments on AIS that is found elsewhere in today's
We thoroughly considered the option of issuing a notice of proposed rule for AIS prior to issuing the interim rule found elsewhere in today's
This Interim rule establishes parts 101 and 102 in new subchapter H to title 33 of the Code of Federal Regulations. It provides the General Provisions for all of subchapter H, and is broken down into five subparts, which we will now discuss in order.
Subpart A, section 101.100 explains the purpose behind all of the Regulations found in subchapter H. That purpose is to increase the level of maritime security found in our nation's ports, while at the same time aligning our domestic maritime security regulations with international standards, wherever such alignment is appropriate. These regulations should dissuade those persons or groups that would seek to disrupt the maritime elements of the national transportation system by ensuring that security arrangements are as compatible as possible for vessels trading internationally.
Subpart A, section 101.105 goes on to define the terms that are used in subchapter H. Definitions found in this section of part 101, subpart A are applicable to the entire subchapter. We have included all definitions in part 101 in order to give the reader a common place for reference, a “one stop shopping” of sorts.
Many of the definitions are self-explanatory, so we have not gone into detail about them here. For brevity, we are limiting this discussion to those definitions that we think may be confusing or novel. For instance, the MTSA and the ISPS Code use different terms to define similar, if not identical, persons or things. These differing terms sometimes match up with the terms used in subchapter H, but sometimes they do not. Thus, in some definitions you will find references to other terms, used in the MTSA or the ISPS Code. We are including a table of these terms here, for easy reference.
We defined “company” broadly in order to ensure that we captured all persons and/or legal entities that may in fact own or operate a vessel or facility under this subchapter. We did not list out specific legal entities, in order to avoid unintentionally omitting one, making enforcement more difficult as new legal entities are created. We interpret our definition to include the following legal entities: Corporations, partnerships, business trusts, associations, joint ventures, sole proprietorships, and unincorporated organizations.
We chose the term “dangerous substances and devices” for specific reasons. The ISPS Code uses the phrase “weapons, dangerous substances or devices” when identifying the intent of certain security measures. We use dangerous substances and devices because these interim rules do not prohibit weapons that are carried in accordance with the applicable local, State, or federal laws. However, vessel or facility owners or operators, in their own proprietary capacity, may prohibit lawfully possessed weapons as a condition of carriage/entrance. They may also develop and implement procedures whereby weapons and ammunition are temporarily relinquished to the vessel or facility owner or operator and placed in a secure location for the duration of the voyage or stay at the facility. The Coast Guard will retain the authority to impose restrictions on owners or operators when necessary to ensure safety or security, or to secure the observance of rights or obligations of the U.S., especially at heightened threat conditions. The Coast Guard is working with DHS (
We defined “international voyage” to include those vessels that solely navigate the Great Lakes and the St. Lawrence River as far east as a straight line drawn from Cap des Rosiers to West Point, Antiocosti Island and, on the north side of Anticosti Island, the 63rd meridian.
We chose to apply length thresholds using the definition of “registered length” instead of overall length, under the authority of 46 U.S.C. 70114(2). This was done to facilitate enforcement and minimize confusion for vessel owners. Registered lengths are assigned for all documented vessels of the U.S. and appear in Coast Guard databases and on Certificates of Documentation. Conversely, overall lengths can vary as a function of voyage type, and are not assigned for all documented vessels of the U.S. In many cases the two definitions coincide, and where they do not coincide, the registered length is slightly less than overall length.
We have expressed gross tonnage thresholds in one of two ways. If the threshold must be applied using the vessel's gross tonnage measurement under 46 U.S.C. Chapter 143, Convention Measurement, the threshold is expressed in terms of “gross tonnage, ITC.” If the threshold must be applied using the vessel's gross tonnage measurement under 46 U.S.C. Chapter 145, Regulatory Measurement, the threshold is expressed in terms of “gross register tons.” For those vessels that only have a gross tonnage, ITC measurement, yet the requirement calls for a gross register tons threshold, then the gross tonnage, ITC measurement must be used.
We have included a definition of the phrase “Maritime Security (MARSEC) Level,” as well as definitions for each individual MARSEC Level. MARSEC Level, in general, refers to the prevailing threat environment to the maritime elements of the national transportation system. As the threat of a transportation security incident increases, the individual MARSEC Level moves higher, from one to three. Additional discussion on the concept of MARSEC Levels and how they interplay with DHS's HSAS is included below in the discussion for subpart B.
We have also defined a new document, called a Maritime Security (MARSEC) Directive. All MARSEC Directives will qualify as SSI under 49 CFR 1520.7 of the Transportation Security Administration interim rule on SSI, that will be published in the near future. Once published, we will post a copy of this interim rule to the docket. The Coast Guard MARSEC Directives will be consistent with the National Transportation System Security Plan (NTSSP) and in accordance with Transportation Security Directives, as established by the Transportation Security Administration. Additional discussion on what a MARSEC Directive is, how MARSEC Directives will be issued and the proper response to a MARSEC Directive is included below in the discussion for subpart D.
We have adopted the MTSA definition for “transportation security incident.” We also adopted the ISPS Code definitions for “Company Security Officer” and “Vessel Security Officer.” Using these two definitions as our basis, we were able to also define “Facility Security Officer.”
We have also defined the phrase “waters subject to the jurisdiction of the U.S.” to include the navigable waters of the U.S., the Exclusive Economic Zone (EEZ), the seabed and subsoil of the OCS of the U.S. and the resources thereof and the waters adjacent thereto.
Subpart A section 101.110 sets the applicability for all of subchapter H. As stated, it is very broad, covering all vessels, structures, and facilities of any kind, located in, on, or adjacent to waters subject to the jurisdiction of the U.S. This broad application is necessary to cover all entities affected by at least one part of new subchapter H. Each individual part contains a separate applicability section, which is more
In section 101.115 we have incorporated by reference the ISPS Code, 2003 Edition. Specifically, we are incorporating the amendments adopted on 12 December 2002 to the Annex to The International Convention for SOLAS, 1974 and the ISPS Code, parts A and B, also adopted on 12 December 2002. The material is incorporated for all of subchapter H.
Sections 101.120 and 101.125 of subpart A reflect the flexibility that the Coast Guard has tried to build into these regulations. Section 101.120(a) reflects one of the SOLAS amendments, and allows the U.S. to agree upon alternative security arrangements with other SOLAS contracting governments, but only to cover short, international voyages on fixed routes between facilities subject to the jurisdiction of the U.S. and facilities subject to the jurisdiction of the other contracting government. Any vessel covered by one of the agreements is prohibited from engaging in any vessel-to-vessel activity, unless it would be conducting the vessel-to-vessel activity with another vessel covered by the same agreement.
Section 101.120(b)-(c) allows applications for approval of Alternative Security Programs. As noted in the discussion of comments section above, we received many comments supporting the idea of allowing vessels or facilities to submit security plans or programs that meet, as an example, an industry standard, instead of requiring them to follow the plan requirements included in this subchapter, SOLAS, or ISPS Code, parts A and B. We have, accordingly, built this flexibility into the regulation. Once an Alternative Security Program is approved, it will be added to Section 101.125. An up-to-date list will also be kept by G-MP, and will be accessible on the Internet.
Section 101.120(c) details the information that must be included in an application for approval. Part of that application includes an assessment of what vessels or facilities may use the proposed Alternative Security Program. This is important because not all Alternative Security Program will be appropriate for all vessels or facilities. For example, not all approved Alternative Security Programs for facilities will fit the security planning requirements necessary for a CDC facility. As part of the approval process, the Commandant will indicate, in his approval letter, those types of vessels or facilities that may use the approved Alternative Security Programs.
Section 101.130 allows the Commandant to accept equivalent security measures, so long as they are at least as effective as those that are mandated in subchapter H, SOLAS, or ISPS Code, parts A and B. This allowance is made for both vessels and facilities required to have security programs under parts 104, 105, or 106. Equivalent security measures differ from Alternative Security Programs. Once an Alternative Security Program is approved, any vessel or facility that meets the approval qualifications may meet the provisions of the Alternative Security Program in lieu of meeting the security plan requirements of the applicable part of this subchapter. Equivalent security measures, once approved, are only approved for the particular vessel or facility making the application.
Equivalent security measures are those distinct security measures, such as fences or alarm systems, which may be required within a security plan. Requests for approval of equivalent security measures should be made at the time that a vessel or facility is submitting their security plan for approval, and they should be made to the appropriate plan approval authority under part 104, 105, or 106.
The SOLAS Amendments and ISPS Code lay out a series of requirements for Contracting Governments and Administrations to mandate security levels that are appropriate for their vessels and ports. The Coast Guard is implementing these requirements in coordination with the HSAS. Homeland Security Presidential Directive (HSPD)-3 defines a five-tiered system for setting threat levels. We are implementing MARSEC Levels, which directly correspond to the security levels as discussed in the SOLAS amendments and the ISPS Code. The MARSEC Levels will be linked to the HSAS as shown in the table below. This table is also included in the regulation itself.
At all times, the Commandant retains the discretion to adjust the MARSEC Level when necessary to address any particular concerns or circumstances related to the maritime elements of the national transportation system. Additionally, the COTP retains the authority to temporarily raise the MARSEC Level for his/her AOR, or a specific segment thereof, when necessary to address exigent circumstances immediately affecting the security of the maritime elements of the national transportation system within his/her AOR.
Subpart C, section 101.300 details the methods the COTP will use to communicate changes in the MARSEC Level. Note that individual ATMS Plans may outline additional communication methods that are particular to the Plan's covered area. It also details the threat information that the COTP will, when appropriate, communicate to the port stakeholders, vessels, and facilities located within his or her AOR. Finally, this section requires vessel and facility security plan holders to confirm that they have implemented the measures and/or actions in their security plans that correspond to the MARSEC Level.
Subpart C, section 101.305 describes the reporting requirements placed on vessel and facility security plan holders. First, it requires that they report suspicious activities that may result in a transportation security incident. These reports are to be made to the National Response Center (NRC), and the
It is advised, although not required, that vessel and facility security plan holders familiarize themselves with the type of information that will be asked of them when placing a call to the NRC. They may do this by visiting the NRC's Web site at
This section also encourages other persons or entities to call the NRC to report suspicious activities that may result in a security incident.
Vessel and facility security plan holders are also required to report the onset of an actual transportation security incident to their local COTP or, if a facility regulated by part 106 of this subchapter, their District Commander. They must also immediately begin implementing the provisions of their security plan, including contacting any other individuals or entities (such as the NRC or local authorities) listed within their security plan.
Section 101.310 of subpart C lists two methods of communication, alert systems and AIS, which may be used to augment the communications methods listed in a vessel's security plan. Alert systems are discussed in more detail in part 104 of this subchapter; AIS is covered in 33 CFR parts 26, 161, 164 and 165.
This section also explicitly states that the provisions of subchapter H do not limit the powers conferred by any other law or regulation upon any Coast Guard commissioned, warrant, or petty officer.
Subpart D, section 101.405 describes when the Coast Guard will issue a Maritime Security (MARSEC) Directive. MARSEC Directives will set mandatory measures that all defined entities must meet in a specified time. These entities will also be required to verbally confirm, to the local COTP or District Commander (as appropriate), receipt of the MARSEC Directive, as well as specify the method by which the mandatory measures have been (or will be) met. This section also builds in some flexibility by allowing the MARSEC Directive recipient to submit proposed equivalent security measures to the local COTP or District Commander (as appropriate), if the MARSEC Directive recipient is unable to implement the measures mandated in the MARSEC Directive. However, the entity will only be able to propose such alternatives for the length of time specified in the MARSEC Directive, and he/she will be required to implement any alternative measure that the COTP does approve.
The Coast Guard plans to use MARSEC Directives to mandate additional security measures that are SSI. They may be applicable to all maritime elements of the national transportation system, or they may impose additional security measures on specific maritime elements of the national transportation system. As stated, only the Commandant or his/her delegate will issue these MARSEC Directives at the national level. All MARSEC Directives will be designated and disseminated as SSI, in accordance with 49 CFR part 1520 (to be amended by the Transportation Security Administration). As a result, the MARSEC Directives will only be issued to those persons who can demonstrate that they are a covered person and that they have a need to know, as those terms are defined in the SSI regulation. Company, Vessel, and Facility Security Officers should familiarize themselves with the SSI regulation.
When a new MARSEC Directive is issued, the Coast Guard plans to publish, in the
Upon receiving notice that a new MARSEC Directive has been issued, affected entities would contact or be contacted by their local COTP (or, if appropriate, their District Commander) to receive a copy of the MARSEC Directive. The COTP or District Commander will confirm, prior to distributing the MARSEC Directive, that the requesting entity is a covered person with a need to know, and that the requesting entity will safeguard the MARSEC Directive as SSI. Thus, continuing with the example from the previous paragraph, upon receiving notice that a MARSEC Directive in the 104 series has been issued, owners and operators of vessels covered by part 104 of this subchapter would need to contact their local COTP to obtain a copy of the MARSEC Directive. They would then be required to comply with the MARSEC Directive, or follow the procedures set out in the MARSEC Directive for gaining approval of an equivalent security measure. COTPs may also use the AMS Committee as a mechanism for disseminating the MARSEC Directive to those with a need to know.
MARSEC Directives will be issued under an extension of the Coast Guard's existing COTP authorities regarding maritime security, found in 33 U.S.C. 1226 and 50 U.S.C. 191. In part, the implementing regulations for 50 U.S.C. 191, found at 33 CFR 6.14-1 and promulgated by Executive Order 10277, contemplate action by the Commandant that is national in scope. Specifically, these regulations authorize the Commandant to prescribe such conditions and restrictions deemed necessary under existing circumstances for the safety of waterfront facilities and vessels. Additionally, 43 U.S.C. 1333(d) authorizes the Coast Guard to establish certain requirements for OCS facilities. Moreover, MARSEC Directives are a necessary and integral part of exercising the Coast Guard's authorities in 46 U.S.C. Chapter 701, to ensure that that Chapter's security requirements are met.
The MARSEC Directives will provide specific instruction to the regulated maritime community to achieve the performance standards required by this subchapter and 46 U.S.C. Chapter 701. For example, the plans required by 46 U.S.C. 70103 are not subject to public disclosure, in accordance with 46 U.S.C. 70103(d), and contain SSI that, if disclosed, could be used to subvert or exploit the security program for vessels, facilities, OCS facilities, or ports. This could include passenger screening levels, means of monitoring restricted areas, and other requirements that may be necessary to ensure that the security plans remain viable. Like civil aviation security, these specific requirements cannot be placed in a public regulation and are better suited for issuance through a MARSEC Directive that is itself not subject to public disclosure.
Since MARSEC Directives would be issued when necessary to protect national security and to preserve the rights and obligations of the U.S. with
Subpart D, section 101.410 lists examples of the types of control and compliance measures that a COTP may take on vessels and/or facilities within his/her AOR that are not in compliance with subchapter H. The lists of measures are not meant to be exhaustive. This section also notes that the COTP may impose one or more of these control and compliance measures on a vessel that is in compliance with subchapter H, if that vessel has called on a facility that is not in compliance, or if it has called on a port that does not maintain adequate security measures to ensure that the level of security achieved by subchapter H has not been compromised.
Section 101.415 outlines the penalty provisions that may be taken against persons for violating the provisions of this subchapter. Civil and criminal penalties may be imposed under 33 U.S.C. 1232 or 50 U.S.C. 192, as appropriate, for violations of control and compliance measures, including COTP orders and security zones. This simply restates the current law applicable under the Magnuson Act, 590 U.S.C. 191, implemented at 33 CFR part 6, and the Ports and Waterways Safety Act, 33 U.S.C. 1221
Finally, section 101.420 outlines the appeal rights available to persons directly affected by a decision or action taken by the COTP or the Commanding Officer of the Marine Safety Center.
Subpart E sets out the remaining regulations that apply to all of subchapter H that do not fit in any of the subparts discussed above. We have reserved the first section in this subpart for procedures for authorizing a Recognized Security Organization (RSO). As noted above in the discussion of comments, the Coast Guard is authorized, under SOLAS, to delegate its assessment and plan approval authority to an RSO. The Coast Guard has decided to retain this authority for the time being. We may, however, delegate some (or all) of this authority to RSOs in the future. As a result, we are reserving this section for outlining the procedures an organization will need to follow in order to qualify as an RSO in the future.
Section 101.505 describes the purpose behind a Declaration of Security (DoS). A DoS is intended to clarify the specific security responsibilities of a vessel and a facility (or another vessel) with which it will be conducting some activity. It will be used to eliminate situations where confusion leads the vessel to believe that the facility (or other vessel) will take care of certain security measures, while the facility (or other vessel) believes that the vessel will take care of the same security measure. Parts 104 through 106 of subchapter H describe in detail the who, what, where, when and how of completing a DoS for their respective regulated entities. Additionally, to ensure that vessels and facilities coordinate security during special marine events such as festivals that draw large numbers of people to the waterfront or vessels that wish to enter port with a higher MARSEC Level than what has been set for the port, we have included a provision to ensure the COTP's ability to mandate a DoS.
Section 101.510 of subpart E lists the various assessment tools that may be used to meet the risk assessment requirements in parts 103 through 106 of this subchapter. This list is provided to ensure that security assessments done to meet these requirements are consistent with other modal assessments and are sufficient enough to enable the development of security plans. We have been working with other agencies to develop assessment tools that are sensitive to a diversity of transportation modes to ensure equity of security throughout the entire National transportation system. We anticipate that eventually one security assessment tool will be mandated for all transportation modes. In the interim, the list provided in Section 101.510 enables the maritime security provisions to advance until the national transportation security assessment mandate is complete. Even when a national transportation security assessment is in place, we intend to provide a “grandfather clause” to those security assessments done to meet the maritime security requirements found elsewhere in today's
The Transportation Security Administration intends to publish a Notice of Proposed rulemaking with request for comment that promulgates rules in 49 CFR part 1574 to manage the access to and use of a user-friendly risk-based vulnerability assessment tool. This tool will be the result of inter-agency work, under the leadership of TSA thus far to establish a national transportation security assessment. It will be designed as a self-assessment tool for the owner or operator, and is one of the tools an owner or operator may use to meet the risk assessment requirements in parts 103, 104, 105 and 106 of subchapter H.
Section 101.515 of subpart E prescribes the minimum requirements for personal identification credentials for purposes of access control under this subchapter. As discussed in the
Part 102 in subchapter H has been reserved for the National Maritime Transportation Security (NMTS) Plan that is required under 46 U.S.C. 70103a. At this time we are coordinating the implementation of the National Maritime Security Advisory Committee (NMSAC) as required in the MTSA (46 U.S.C. 70112a). While the development of this overarching plan and the establishment of the National Advisory Committee are key sustaining National Maritime Security initiatives, we do not feel their development is necessary prior to the implementation of these interim rule requirements. We believe the concepts found in the interim rules published in today's
Additionally, the Aviation and Transportation Security Act (ATSA) assigns responsibility for managing the security of the nation's transportation modes to the Transportation Security Administration. In its role as the National Transportation System Security Manager, Transportation Security Administration intends to
The NTSSP will provide a comprehensive and systematic approach to the national transportation system's risk management. It will set the framework and establish goals for National Security Plans for each of the transportation modes.
The Director of the
This interim rule incorporates by reference the International Ship and Port Facility Security (ISPS) Code, 2003 Edition. Specifically, we are incorporating the amendments adopted on 12 December 2002 to the Annex to The International Convention for the Safety of Life at Sea (SOLAS), 1974 and The International Code For the Security of Ships and of Port Facilities, also adopted on 12 December 2002. The material is incorporated for all of subchapter H. The interim rule titled “Automatic Identification System; Vessel Carriage Requirement” (USCG-2003-14757), found elsewhere in today's
This interim rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and has been reviewed by the Office of Management and Budget (OMB) under that Order. It requires an assessment of potential costs and benefits under section 6(a)(3) of that Order. It is significant under the regulatory policies and procedures of DHS. A draft assessment is available in the docket as indicated under
In a December 30, 2002, meeting notice [67 FR 79742], the Coast Guard presented a preliminary cost assessment estimating the cost to the regulated public of implementing MTSA, the ISPS code, and complying with applicable security NVICs. We asked for comments on our estimates and have changed portions of our cost assessments for the interim rules based on those comments.
We received a wide range of comments on the preliminary assessment. In some areas, commenters believed we were overestimating costs, in other areas they believed we were understating costs, and in many instances commenters believed we had accurately accounted for costs. As a result of the comments, our cost estimates for vessels and facilities increased, while our estimates for ports remained about the same. Additionally, the summary of costs we present below includes estimates for the OCS interim rule and the AIS interim rule, which were not part of our original assessment for the meeting notice.
For vessels, we decreased the population of U.S. flag SOLAS fishing vessels from 39 to 1. We also removed domestic MODUs and domestic freight barges regulated under 46 CFR subchapter I from our assessment, as the Coast Guard is not regulating these vessels in these interim rules. We added 70 foreign vessels that make port calls in the United States but are not subject to SOLAS. We increased the cost for hand-held radios and portable vapor detectors based on information received in the comments.
In our preliminary assessment, we assumed that equipment would be replaced every 10 years. Several commenters believed that this underestimated the replacement costs for several of the pieces of equipment that we considered. Specifically, several commenters stated some equipment would be broken, lost, or stolen before the 10-year replacement. We agreed that we should increase equipment costs to account for these situations. Because the replacement cycle of equipment will vary considerably among types of equipment and its uses, we increased the annual operations and maintenance (O&M) costs to more accurately capture increased replacement and repair. In the preliminary cost estimates, we assumed that annual O&M costs would be 5 percent of the initial capital purchase cost. In the
Based on comments, we found there was some confusion about labor costs. Labor costs presented in our assessment are not the hourly wage paid to the employee; rather, they are the fully loaded cost to the company of carrying the position and providing employee benefits. Additionally, there was some confusion about our estimates for Vessel Security Assessments and Vessel Security Plans. We believe that most companies will choose to develop one overarching assessment or plan, and then take that overarching document and add documentation specific to each vessel in their fleets. The “incremental” costs that we presented for each vessel type in the preliminary assessment represented the cost to add the vessel to the overarching company assessment or plan. Thus, in our preliminary cost assessment it may have seemed that it cost only a few dollars to develop a Vessel Security Assessment or Vessel Security Plan for a particular vessel. In fact, we believe that Vessel Security Assessments and Vessel Security Plans will represent a substantial initial cost, but adding vessels to an overarching plan will be a smaller, incremental cost. For annual updates to Vessel Security Assessments and Vessel Security Plans, we have increased the time required to amend these documents from 1 minute per vessel (0.02 hours) to 15 minutes per vessel (0.25 hours). The net effect of this change was to increase our annual costs slightly.
For facilities, we added certain fleeting areas to our population based on our assessment of the risk these areas pose. We also increased equipment costs for most items for Group A facilities in response to several comments. (We recognize that not all facilities will incur the same cost for personnel salaries, hire the same number of security guards, or spend the same amount of time drafting Facility Security Assessments and Facility Security Plans. For the purpose of this assessment, we have divided the facility population in two groups. One group is composed of one third of all facilities and will have more security duties, hire more guards, and spend more time drafting Facility Security Assessments and Facility Security Plans than the other group that is composed of the remaining two-thirds of the total population. Facilities in the first group are addressed in this assessment as “A” and facilities in the second group as “B.”) As in our vessel assessment, we increased annual O&M costs from 5 percent of purchase cost to 10 percent of purchase cost to more accurately capture annual repair and replacement. We received several comments on the cost estimated for security guards. Commenters stated the $40,000 annual cost presented was either too low, too high, or accurate. We believe these diverging opinions could be explained by the cost of living and the
A detailed summary of the changes made from the December 2002 meeting notice and the Cost Assessment for the interim rules for security is presented in Table 6.
The following summary presents the estimated costs of complying with the interim rules on Vessel Security, Facility Security, OCS Facility Security, Area Maritime Security, and AIS, which are published elsewhere in today's
For the purposes of good business practice, or to comply with regulations promulgated by other Federal and State agencies, many companies already have spent a substantial amount of money and resources to upgrade and improve security. The costs shown in this summary do not include the security measures these companies have already taken to enhance security.
We realize that every company engaged in maritime commerce would not implement the interim rules exactly as presented in this assessment. Depending on each company's choices, some companies could spend much less than what is estimated herein, while others could spend significantly more. In general, we assume that each company would implement the interim rules based on the type of vessels or facilities it owns or operates, whether it engages in international or domestic trade, and the ports where it operates.
This assessment presents the estimated cost if vessels, facilities, OCS facilities, and ports are operating at MARSEC Level 1, the current level of operations since the events of September 11, 2001. We also estimate the costs for operating for a brief period at MARSEC Level 2, an elevated level of security. We also discuss the potential effects of operating at MARSEC Level 3, the highest level of maritime security.
We do not anticipate that implementing the interim rules will require additional manning aboard vessels or OCS facilities; existing personnel can assume the duties envisioned. For facilities, we anticipate additional personnel in the form of security guards that can be hired through contracting with a private firm specializing in security.
Based on our assessment, the first-year cost of implementing the interim rules is approximately $1.507 billion. Following initial implementation, the annual cost is approximately $884 million, with costs of present value (PV) $7.348 billion over the next 10 years (2003-2012, 7 percent discount rate). Estimated costs are as follows.
Implementing the interim rule will affect about 10,300 U.S. flag SOLAS, domestic (non-SOLAS), and foreign non-SOLAS vessels. The first-year cost of purchasing and installing equipment, hiring security officers, and preparing paperwork is approximately $218 million. Following initial implementation, the annual cost is approximately $176 million. Over the
Implementing the interim rule will affect about 5,000 facilities. The first-year cost of purchasing and installing equipment, hiring security officers, and preparing paperwork is an estimated $1.125 billion. Following initial implementation, the annual cost is approximately $656 million. Over the next 10 years, the cost would be PV $5.399 billion.
Implementing the interim rule will affect about 40 OCS facilities under U.S. jurisdiction. The first-year cost of purchasing equipment and preparing paperwork is an estimated $3 million. Following initial implementation, the annual cost is approximately $5 million. Over the next 10 years, the cost would be PV $37 million.
Implementing the interim rule will affect about 47 maritime areas containing 361 ports. The initial cost of the startup period (June 2003-December 2003) is estimated to be $120 million. Following the startup period, the first year of implementation (2004) is estimated to be $106 million. After the first year of implementation, the annual cost is approximately $46 million. Over the next 10 years, the cost would be PV $477 million.
Implementing the interim rule will affect about 4,600 U.S. flag SOLAS and domestic (non-SOLAS) vessels in VTS areas. The first-year cost of purchasing equipment and training for U.S. vessels (SOLAS and domestic) is approximately $40 million. Following initial implementation, the annual cost for U.S. vessels is approximately $1 million. Over the next 10 years, the cost for these vessels would be PV $66 million (with replacement of the units occurring 8 years after installation).
An additional 70 foreign flag, non-SOLAS vessels will also be affected. The first-year cost of purchasing and installing equipment and training personnel for these vessels is approximately $0.6 million. Following initial implementation, the annual cost is less than $0.1 million. Over the next 10 years, the cost for these vessels would be PV $1 million.
MARSEC Level 2 is a heightened threat of a security incident, and intelligence indicates that terrorists are likely to be active within a specific target or class of targets. MARSEC Level 3 is a probable or imminent threat of a security incident. MARSEC Levels 2 and 3 costs are not included in the above summaries because of the uncertainty that arises from the unknown frequency of elevation of the MARSEC Level and the unknown duration of the elevation.
The costs to implement MARSEC Levels 2 and 3 security measures in response to these increased threats do not include the costs of security measures and resources needed to meet MARSEC Level 1 (summarized above) and will vary depending on the type of security measures required to counter the specific nature of higher levels of threat. Such measures could include additional personnel or assigning additional responsibilities to current personnel for a limited period of time.
We did not consider capital improvements, such as building a fence, to be true MARSEC Levels 2 or 3 costs. The nature of the response to MARSEC Levels 2 and 3 is intended to be a quick surge of resources to counter an increased threat level. Capital improvements generally take time to plan and implement and could not be in place rapidly. Capital improvement costs are estimated under MARSEC Level 1 costs.
We did not calculate MARSEC Level 2 cost for the AMS because this will be primarily a cost to the Coast Guard for administering the heightened MARSEC Level in port and maritime areas.
In order to estimate a cost for MARSEC Level 2, we made assumptions about the length of time the nation's ports can be expected to operate at the heightened security level. For the purpose of this assessment only, we estimate costs to the nation's ports elevating to MARSEC Level 2 twice a year, for 3 weeks each time, for a total period of 6 weeks at MARSEC Level 2. Again, this estimate of 6 weeks annually at MARSEC Level 2 is for the purposes of illustrating the order of magnitude of cost we can expect. Our estimate should not be interpreted as the Coast Guard's official position on how often the nation's ports will operate at MARSEC Level 2.
We estimate that there are Vessel Security Officers aboard all U.S. flag SOLAS vessels and most domestic vessels. We estimate that there will also be key crewmembers that can assist with security duties during MARSEC Level 2 aboard these vessels. We assume that both Vessel Security Officers and key crewmembers will work 12 hours a day (8 hours of regular time, 4 hours of overtime) during the 42 days that the ports are at MARSEC Level 2. We then estimate daily and overtime rates for Vessel Security Officers and key crewmembers. Given these assumptions, we estimate that elevating the security level to MARSEC Level 2 twice a year each for 21 days will cost vessel owners and operators approximately $235 million annually.
We estimate that every regulated facility will have a Facility Security Officer assigned to it. We also estimate that there will also be a key person that can assist with security duties during MARSEC Level 2 at each facility. We assume that both Facility Security Officers and key personnel will work 12 hours a day (8 hours of regular time, 4 hours of overtime). For facilities that have to acquire security personnel for MARSEC Level 1, we assumed that during MARSEC Level 2 the number security guards would double for this limited time. For the facilities for which we did not assume any additional guards at MARSEC Level 1, we assumed that during MARSEC Level 2 these would have to acquire a minimal number of security guards. Given these assumptions, we estimate that elevating the security level to MARSEC Level 2 twice a year each for 21 days will cost facility owners and operators approximately $424 million annually.
We estimate that elevating the security level to MARSEC Level 2 twice a year each for 21 days will cost the regulated OCS facility owners and operators approximately $4 million annually. This cost is primarily due to increased cost for OCS Facility Security Officers and available key security personnel.
Other costs that we did not attempt to quantify include possible operational restrictions such as limiting cargo operations to daylight hours or greatly limiting access to facilities or vessels.
MARSEC Level 3 will involve significant restriction of maritime operations that could result in the temporary closure of individual facilities, ports, and waterways either in a region of the U.S. or the entire nation. Depending on the nature of the specific threat, this highest level of maritime security may have a considerable impact on the stakeholders in the affected ports or maritime areas. The ability to estimate the costs to business and government for even a short period at MARSEC Level 3 is virtually impossible with any level of accuracy or analytical confidence due to the infinite range of threats and scenarios that could trigger MARSEC Level 3.
The length and the duration of the increased security level to MARSEC Level 3 will be entirely dependent on the intelligence received and the scope
The cost of MARSEC Level 3 can best be appreciated by the benefits of the U.S. MTS to the economy. Maritime commerce is the lifeblood of the modern U.S. trade-based economy, touching virtually every sector of our daily business and personal activities.
Annually, the U.S. MTS contributes significant benefits to the economy. More than 95 percent of all overseas trade that enters or exits this country moves by ship, including 9 million barrels of oil a day that heats homes and businesses and fuels our automobiles.
Other benefits include the water transportation and shipping industry that generates over $24 billion in revenue and provides nearly $3 billion of payrolls.
We could expect not just the immediate effects of port and waterway closures on waterborne commerce as described above, but also serious “ripple effects” for the entire U.S. economy that could last for months or more, including delayed commerce, decreased productivity, price increases, increased unemployment, unstable financial markets worldwide, and economic recession.
To appreciate the impact, we can examine one sector of the economy: agriculture. Many farm exports are just-in-time commodities, such as cotton shipped to Japan, South Korea, Indonesia, and Taiwan. Asian textile mills receive cotton on a just-in-time basis because these mills do not have warehousing capabilities. A port shutdown may cause U.S. cotton wholesalers to lose markets, as textile producers find suppliers from other nations. U.S. wholesalers would lose sales until shipping is restored.
Another example is the auto industry. A recent shutdown of West Coast ports due to a labor dispute caused an automobile manufacturer to delay production because it was not receiving parts to make its cars. We can see that a port shutdown can create a domino effect, from stalling the distribution of materials to causing stoppages and delays in production to triggering job losses, higher consumer prices, and limited selection.
The macroeconomic effects of the recent shutdown of West Coast ports, while not in response to a security threat, are a good example of the economic costs that we could experience when a threat would necessitate broad-based port closures. The cost estimates of this 11-day interruption in cargo flow and closure of 29 West Coast ports have ranged between $140 million to $2 billion a day, but are obviously high enough to cause significant losses to the U.S. economy.
Another proxy for the estimated costs to society of nationwide port closures and the consequential impact on the U.S. supply chain can be seen by a recent war game played by businesses and government agencies.
We believe that the cost to the national economy of a port shutdown due to extreme security threats, while not insignificant, would be relatively small if it only persisted for a few days and involved very few ports. However, if the interruption in cargo flows would persist much longer than the 11-day shutdown recently experienced on the West Coast, the economic loss is estimated to geometrically increase (double) every additional 10 days the ports were closed.
A team of experts considered the benefits of various security measures that will be implemented and used the N-RAT to estimate the reduction in risk associated with these security measures. Before the results of this assessment are discussed, it is helpful to understand why the Coast Guard chose this methodology to measure regulatory benefits.
Traditionally, the Coast Guard's regulations intended to decrease marine-related casualties, which in turn reduced number of injuries, fatalities, and pollution (primarily oil) spilled into the marine environment. These sorts of safety and environmental benefits could be estimated with some degree of accuracy; the well-documented and detailed history of maritime incidents provides a solid foundation to estimate the “costs to society” that could be
Consequently, our environmental protection and marine safety regulations were generally accompanied by estimates of reduced injuries, fatalities, and pollution attributable to a specific regulation. For example, the recently promulgated Final Rule titled
Estimating the benefits of new security requirements, however, is more challenging. Incident causation probabilities, based on historic trends and analysis, can be estimated in a manner that terrorist activities cannot. Currently, we believe it is virtually impossible to estimate benefits for security regulations in the way benefits are estimated for non-security regulations. We do not believe we can state with any degree of certainty that a specific security regulation would save a number or a range of fatalities, as no viable baseline exists from which to project these benefits. We realize though, that the burden on the regulated public of bearing the costs of new security regulations will be high, and we must balance the benefits of these regulations with their associated costs. We must also consider the consequences of taking no action.
We do not assume the benefits of the interim rules automatically offset their costs simply because these rules are security related. By using RBDM, however, we have measured the relative risk reduction resulting from these security measures, permitting us to estimate the “value” these regulations will have. In considering the applicability of the interim rules, we have strived to apply requirements to those maritime entities that pose the greatest risk, and the N-RAT was an important and powerful tool in our Risk-Based Decision Making process. We believe that through better-informed judgments that came, in part, from the results of the N-RAT, we are appropriately balancing the benefits of the interim rules with their costs.
The expert review and scoring process was complex and challenging. The fundamental principles of the N-RAT, however, are relatively simple to understand. For each applicable entity in the interim rules, we assigned an annual “baseline” risk score. We then considered the requirements of the six interim rules described herein and assigned an annual post-regulation risk score. The benefits attributable to part 101—General Provisions—were not considered separately because it is an overarching section for all the subparts. The benefits for part 101 are represented in each of the remaining security subparts. The difference between the baseline risk score and the post-regulation risk score is the quantified benefit of the remaining five interim rules.
Besides the complex procedure to assign risk scores to the applicable maritime entities, we were faced with the further complication that rules will have multiple benefits; thus, we have the potential to double-count the risk reduced. For example, if the owner or operator of a petroleum tanker enhances his vessel's security, this will also benefit the receiving facility where this vessel transfers its cargo. The reverse is also true: If the owner or operator of the facility enhances his facility's security, this will benefit the vessels that arrive there. We recognize that the interim rules are a “family” of rulemakings that will reinforce and support one another in their implementation. We must ensure, however, that risk reduction that is credited in one rulemaking is not also credited in another.
To avoid double-counting risk reduced, we first determined the “universe” of total benefits of all security measures recently implemented, about to be implemented, or planned for future rulemakings. Examples of other rules that were considered in the “universal” risk points are the Coast Guard's Notice of Arrival (96-Hour Rule), Custom's rulemaking regarding cargo manifests (24-Hour Rule), and a future rulemaking for transportation security cards. We then apportioned the total benefits to specific regulations. By approaching the benefits assessment in this manner, we were able to address the limitations of the N-RAT. The threat, vulnerability, and consequence scores are whole numbers between 1 and 5. The N-RAT did not allow us to score a relatively minor security initiative only 0.1 or 0.5 of a risk point, even though the initiative contributes to risk reduction. When we considered the rules as a group, however, security initiatives that could not be scored individually due to the limited granularity of the N-RAT can be scored when considered with the rest of the rules because of their cumulative risk reduction benefits.
Once we determined the total risk reduction benefits of the all the applicable rules, we “apportioned” the total risk points back to each individual regulation. We avoided double-counting benefits among the rulemakings as each risk point was counted only once. While there was subjectivity in this apportionment of risk points back to the individual rulemakings, we believe this methodology's strength of allowing a systematic quantification of risk reduction for each regulation outweighs its subjectivity.
We determined annual risk points reduced for each of the six interim rules using the N-RAT. Table 7 presents the annual risk points reduced by the rules. As shown, the interim rule for vessel security plans reduces the most risk points annually. The interim rule for AIS reduces the least.
Once we determined the annual risk points reduced, we discounted these estimates to their PV (7 percent discount rate, 2003-2012) so that they could be compared to the costs. We presented the cost effectiveness, or dollars per risk point reduced, in two ways: First, we compared first-year cost to first-year benefit, because first-year cost is the highest in our assessment as companies develop security plans and purchase equipment. Second, we compared the 10-year PV cost to the 10-year PV benefit. The results of our assessment are presented in Table 8.
As shown, the rulemaking for vessel security plans is the most cost effective. This is due to the nature of the security measures we expect vessels will have to take to ensure compliance as well as the level of risk that is reduced by those measures. Facility security plans are less cost effective because they incur higher costs for capital purchases (such as gates and fences) and require more labor (such as security guards) to ensure security. OCS Facility and AMS Plans are almost equally cost effective; the entities these rules cover do not incur the highest expenses for capital equipment, but on this relative scale, they do not receive higher risk reduction in the N-RAT, either. The AIS rulemaking is the least cost effective, though it is important to remember that AIS provides increased maritime domain awareness and navigation safety, which is not robustly captured using the N-RAT.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether these interim rules 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. These interim rules do not require a general notice of proposed rulemaking and, therefore, are exempt from the requirements of the Regulatory Flexibility Act.
Although these interim rules are exempt, we have reviewed each rule for potential economic impacts on small entities. We found that the facilities, vessels, and AIS rules may have a significant impact on a substantial number of small entities. However, we did certify no significant economic impact on a substantial number of small entities for the Area Maritime Security and OCS facility security rules. Additional information on small entity impacts is available in the
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding these rules so that they can better evaluate the effects on them and participate in the rulemaking. If these rules affect your small business, organization, or governmental jurisdiction and you have questions concerning their provisions or options for compliance, please consult CDR Suzanne Englebert, G-M-1 by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or by electronic mail
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).
The interim rules published in today's
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of the interim rules to the OMB for its review of the collection of information. Due to the circumstances surrounding this temporary rule, we asked for “emergency processing” of our request. We received OMB approval for these collections of information on June 16, 2003. They are valid until December 31, 2003.
We ask for public comment on the collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.
If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under
You need not respond to a collection of information unless it displays a currently valid control number from OMB. We received OMB approval for these collections of information on June 16, 2003. They are valid until December 31, 2003.
Executive Order 13132 requires USCG to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under the Executive Order, USCG may construe a Federal statute to preempt State law only where, among other things, the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.
This action has been analyzed in accordance with the principles and criteria in the Executive Order, and it has been determined that this interim rule does have Federalism implications or a substantial direct effect on the States. This rulemaking requires those States which own or operate vessels or facilities that may be involved in a transportation security incident to conduct vulnerability assessments of their vessels and facilities and to develop security plans for their protection. These plans must contain measures that will be implemented at each of the three MARSEC Levels, and must be reviewed and approved by the Coast Guard.
Additionally, the Coast Guard has reviewed the MTSA with a view to whether we may construe it as non-preemptive of State authority over the same subject matter. We have determined that it would be inconsistent with the federalism principles stated in the Executive Order to construe the MTSA as not preempting State regulations which conflict with the regulations in this rulemaking. This is because owners or operators of facilities and vessels that are subject to the requirements for conducting vulnerability assessments, planning to secure their facilities and vessels against threats revealed by those assessments and complying with the standards, both performance and specific construction, design, equipment and operating requirements, must have one uniform, national standard which they must meet. Vessels and shipping companies, particularly, would be confronted with an unreasonable burden if they had to comply with varying requirements as they moved from State to State. Therefore, we believe that the federalism principles enunciated by the Supreme Court in
Finally, it is important to note that the regulations implemented by this rulemaking bear on national and international commerce where there is no constitutional presumption of concurrent State regulation. Many aspects of these regulations are based on the U.S. international treaty obligations regarding vessel and port facility security contained in the International Convention for the SOLAS, 1974 and the complementary ISPS Code. These international obligations reinforce the need for uniformity regarding maritime commerce.
Notwithstanding the foregoing preemption determinations and findings, the Coast Guard has consulted extensively with appropriate State officials, as well as private stakeholders during the development of this rule. Specifically, we have held seven public meetings across the country with invitation letters to all State homeland security representatives. Many State representatives attended these meetings and submitted comments to the public notice docket that we have considered for these interim rules. The State
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. This rule is exempted from assessing the effects of the regulatory action as required by the Act because it is necessary for the national security of the U.S. (2 U.S.C. 1503(5)).
This rule will 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 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. While this rule is an economically significant rule, it does not create 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 disproportionate effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We would appreciate any comments, however, if you disagree with this conclusion.
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. Although it is a “significant regulatory action” under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Additionally, the Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This rule has a positive effect on the supply, distribution, and use of energy. The rule provides for security assessments, plans, procedures, and standards, which will prove beneficial for the supply, distribution, and use of energy at increased levels of maritime security.
We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(a), (34)(c), (34)(d), and (34)(e) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under
This final rule concerns security assessments, plans, training, security positions, and organizations along with vessel equipment requirements that will contribute to a higher level of marine safety and security for U.S. ports. A “Categorical Exclusion Determination” is available in the docket where indicated under
This rulemaking will not significantly impact the coastal zone. Further, the rulemaking and the execution of this rule will be done in conjunction with appropriate State coastal authorities. The Coast Guard will, therefore, comply with the requirements of the Coastal Zone Management Act while furthering its intent to protect the coastal zone.
The Trade Agreement Act of 1979 prohibits federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the U.S. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The Act also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We have assessed the potential effect of this regulation, and have determined that it would likely create obstacles to the foreign commerce of the U.S.. However, because these regulations are being put in place in order to further a legitimate domestic objective, namely to increase the security of the U.S., any obstacles created by the regulation are not considered unnecessary obstacles.
Facilities, Harbors, Incorporation by reference, Maritime security, Ports, Security assessments, Security plans, Reporting and recordkeeping requirements, Vessels, Waterways.
Maritime security.
33 U.S.C. 1231, 1226; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 192; E.O. 12656, 3 CFR 1988 Comp. p. 585; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.
(a) The purpose of this part is:
(1) To implement portions of the maritime security regime required by the Maritime Transportation Security Act of 2002, as codified in 46 U.S.C. Chapter 701;
(2) To align, where appropriate, the requirements of domestic maritime security regulations with the international maritime security standards in the International Convention for the Safety of Life at Sea, 1974 (SOLAS Chapter XI-2) and the International Code for the Security of Ships and of Port Facilities, parts A and B, adopted on 12 December 2002; and
(3) To ensure security arrangements are as compatible as possible for vessels trading internationally.
(b) For those maritime elements of the national transportation system where international standards do not directly apply, the requirements in this subchapter emphasize cooperation and coordination with local port community stakeholders, and are based on existing domestic standards, as well as established industry security practices.
Unless otherwise specified, as used in this subchapter:
(1) Is unlawful to possess under applicable Federal, State, or local law;
(2) That has not been approved for entry onto the vessel, facility, or OCS facility by the owner or operator of the vessel, facility, or OCS facility; or
(3) Has not been approved for entry onto a public area or property in a port by the government or property management official with jurisdictional responsibility of that area.
(1) On an international voyage, a vessel carrying more than 12 passengers; and
(2) On other than an international voyage:
(i) A vessel of at least 100 gross register tons carrying more than 12 passengers, including at least one passenger-for-hire;
(ii) A vessel of less than 100 gross register tons carrying more than 6 passengers, including at least one passenger-for-hire;
(iii) A vessel that is chartered and carrying more than 12 passengers;
(iv) A submersible vessel that is carrying at least one passenger-for-hire; or
(v) A wing-in-ground craft, regardless of tonnage, that is carrying at least one passenger-for-hire.
(1) Materials that are on board a vessel for the upkeep, maintenance, safety, operation or navigation of the vessel; and
(2) Materials for the safety or comfort of the vessel's passengers or crew, including any provisions for the vessel's passengers or crew.
Unless otherwise specified, this subchapter applies to vessels, structures, and facilities of any kind, located under, in, on, or adjacent to waters subject to the jurisdiction of the U.S.
(a) Certain material is incorporated by reference into this subchapter with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in paragraph (b) of this section, the Coast Guard must publish notice of change in the
(b) The materials approved for incorporation by reference in this subchapter are as follows:
Publication Section, 4 Albert Embankment, London SE1 7SR, United Kingdom.
(a)
(2) As further provided in SOLAS Chapter XI-2, Regulation 11, a vessel covered by such an agreement shall not conduct any vessel-to-vessel activity with any vessel not covered by the agreement.
(b)
(2) Owners or operators must implement an approved Alternative Security Program in its entirety to be deemed in compliance with either part 104, 105, or 106.
(3) Owners or operators who have implemented an Alternative Security Program must send a letter to the appropriate plan approval authority under part 104, 105, or 106 of this subchapter identifying which Alternative Security Program they have implemented, identifying those vessels or facilities that will implement the Alternative Security Program, and attesting that they are in full compliance therewith. A copy of this letter shall be retained on board the vessel or kept at the facility to which it pertains along with a copy of the Alternative Security Program.
(c)
(1) A list of the vessel and facility type that the Alternative Security Program is intended to apply;
(2) A security assessment for the vessel or facility type;
(3) Explanation of how the Alternative Security Program addresses the requirements of parts 104, 105, or 106, as applicable; and
(4) Explanation of how owners and operators must implement the Alternative Security Program in its entirety, including performing an operational and vessel or facility specific assessment and verification of implementation.
(d) The Commandant (G-MP) will examine each submission for compliance with this part, and either:
(1) Approve it and specify any conditions of approval, returning to the submitter a letter stating its acceptance and any conditions, or
(2) Disapprove it, returning a copy to the submitter with a brief statement of the reasons for disapproval.
(a) For any measure required by part 104, 105, or 106 of this subchapter, the owner or operator may substitute an equivalent security measure that has been approved by the Commandant (G-MP) as meeting or exceeding the effectiveness of the required measure. The Commandant (G-MP) may require that the owner or operator provide data for use in assessing the effectiveness of the proposed equivalent security measure.
(b) Requests for approval of equivalent security measures should be made to the appropriate plan approval authority under parts 104, 105 or 106 of this subchapter.
(a) MARSEC Levels advise the maritime community and the public of the level of risk to the maritime elements of the national transportation system. Ports, under direction of the local COTP, will respond to changes in the MARSEC Level by implementing the measures specified in the AMS Plan. Similarly, vessels and facilities required to have security plans under part 104, 105, or 106 of this subchapter shall implement the measures specified in their security plans for the applicable MARSEC Level.
(b) Unless otherwise directed, each port, vessel, and facility shall operate at MARSEC Level 1.
(c) The Commandant will set the MARSEC Level consistent with the equivalent Homeland Security Advisory System (HSAS) Threat Condition and that Threat Condition's scope of application. Notwithstanding the HSAS, the Commandant retains discretion to adjust the MARSEC Level when necessary to address any particular security concerns or circumstances related to the maritime elements of the national transportation system.
(d) The COTP may temporarily raise the MARSEC Level for the port, a specific marine operation within the port, or a specific industry within the port, when necessary to address an exigent circumstance immediately affecting the security of the maritime elements of the transportation system in his/her area of responsibility.
The MARSEC Levels are aligned with the Department of Homeland Security's Homeland Security Advisory System (HSAS), established by Homeland Security Presidential Directive 3. Table 101.205, titled “Relation between HSAS and MARSEC Levels” in this section, shows this alignment.
(a)
(b)
(1) Geographic area potentially impacted by the probable threat;
(2) Any appropriate information identifying potential targets;
(3) Onset and expected duration of probable threat;
(4) Type of probable threat; and
(5) Required actions to minimize risk.
(c)
(2) Each owner or operator of a facility required to have a security plan under part 106 of this subchapter affected by a change in the MARSEC Level must confirm to their cognizant District Commander the attainment of measures or actions described in their security plan and any other requirements imposed by the District Commander or COTP that correspond with the MARSEC Level being imposed by the change.
(a)
Any other person or entity is also encouraged to report activities that may result in a transportation security incident to the National Response Center.
(b)
(c)
(2) Any owner or operator required to have a security plan under part 106 of this subchapter shall, without delay, report a TSI to their cognizant District Commander and immediately thereafter begin following the procedures set out in their security plan, which may include contacting the National Response Center via one of the means listed in paragraph (a) of this section.
(d) Callers to the National Response Center should be prepared to provide as much of the following information as possible:
(1) Their own name and contact information;
(2) The name and contact information of the suspicious or responsible party;
(3) The location of the incident, as specifically as possible; and
(4) The description of the incident or activity involved.
(a)
(b)
(a) The rules and regulations in this subchapter are enforced by the COTP under the supervision and general direction of the District Commander, Area Commander, and the Commandant. All authority and power vested in the COTP by the rules and regulations in this subchapter is also vested in, and may be exercised by, the District Commander, Area Commander, and the Commandant.
(b) The COTP, District Commander, Area Commander, or Commandant may assign the enforcement authority described in paragraph (a) of this section to any other officer or petty officer of the Coast Guard or other designees authorized by the Commandant.
(c) The provisions in this subchapter do not limit the powers conferred upon Coast Guard commissioned, warrant, or petty officers by any other law or regulation, including but not limited to 33 CFR parts 6, 160, and 165.
(a)(1) When the Coast Guard determines that additional security measures are necessary to respond to a threat assessment or to a specific threat against the maritime elements of the national transportation system, the Coast Guard may issue a MARSEC Directive setting forth mandatory measures. Only the Commandant or his/her delegee may issue MARSEC Directives under this section. Prior to issuing a MARSEC Directive, the Commandant or his/her delegee will consult with those Federal agencies having an interest in the subject matter of that MARSEC Directive. All MARSEC Directives issued under this section shall be marked as sensitive security information (SSI) in accordance with 49 CFR part 1520.
(2) When a MARSEC Directive is issued, the Coast Guard will immediately publish a notice in the
(b) Each owner or operator of a vessel or facility to whom a MARSEC Directive applies is required to comply with the relevant instructions contained in a MARSEC Directive issued under this section within the time prescribed by that MARSEC Directive.
(c) Each owner or operator of a vessel or facility required to have a security plan under parts 104, 105 or 106 of this subchapter that receives a MARSEC Directive must:
(1) Within the time prescribed in the MARSEC Directive, acknowledge receipt of the MARSEC Directive to their local COTP or, if a facility regulated under part 106 of this subchapter, to their cognizant District Commander; and
(2) Within the time prescribed in the MARSEC Directive, specify the method by which the measures in the MARSEC Directive have been implemented (or will be implemented, if the MARSEC Directive is not yet effective).
(d) In the event that the owner or operator of a vessel or facility required to have a security plan under part 104, 105, or 106 of this subchapter is unable to implement the measures in the MARSEC Directive, the owner or operator must submit proposed equivalent security measures and the basis for submitting the equivalent security measures to the COTP or, if a facility regulated under part 106 of this subchapter, to their cognizant District Commander, for approval.
(e) The owner or operator must submit the proposed equivalent security measures within the time prescribed in the MARSEC Directive. The owner or operator must implement any equivalent security measures approved by the COTP, or, if a facility regulated under part 106 of this subchapter, by their cognizant District Commander.
(a) The COTP may exercise authority pursuant to 33 CFR parts 6, 160 and 165, as appropriate, to rectify non-compliance with this subchapter. COTPs or their designees are the officers duly authorized to exercise control and compliance measures under SOLAS Chapter XI-2, Regulation 9, and the ISPS Code (Incorporated by reference, see § 101.115).
(b) Control and compliance measures for vessels not in compliance with this
(1) Inspection of the vessel;
(2) Delay of the vessel;
(3) Detention of the vessel;
(4) Restriction of vessel operations;
(5) Denial of port entry;
(6) Expulsion from port;
(7) Lesser administrative and corrective measures; or
(8) For U.S. vessels, suspension or revocation of security plan approval, thereby making that vessel ineligible to operate in, on, or under waters subject to the jurisdiction of the U.S. in accordance with 46 U.S.C. 70103(c)(5).
(c) Control and compliance measures for facilities not in compliance with this subchapter may include, but are not limited to, one or more of the following:
(1) Restrictions on facility access;
(2) Conditions on facility operations;
(3) Suspension of facility operations;
(4) Lesser administrative and corrective measures; or
(5) Suspension or revocation of security plan approval, thereby making that facility ineligible to operate in, on, under or adjacent to waters subject to the jurisdiction of the U.S. in accordance with 46 U.S.C. 70103(c)(5).
(d) Control and compliance measures under this section may be imposed on a vessel when it has called on a facility or at a port that does not maintain adequate security measures to ensure that the level of security to be achieved by this subchapter has not been compromised.
(a)
(b)
(a) Any person directly affected by a decision or action taken by a COTP under this subchapter, may appeal that action or decision to the cognizant District Commander according to the procedures in 46 CFR 1.03-15.
(b) Any person directly affected by a decision or action taken by a District Commander, whether made under this subchapter generally or pursuant to paragraph (a) of this section, may be appealed to the Commandant (G-MP), according to the procedures in 46 CFR 1.03-15.
(c) Any person directly affected by a decision or action taken by the Commanding Officer, Marine Safety Center, under this subchapter, may appeal that action or decision to the Commandant (G-MP) according to the procedures in 46 CFR 1.03-15.
(d) Decisions made by Commandant (G-MP), whether made under this subchapter generally or pursuant to the appeal provisions of this section, are considered final agency action.
(a) The purpose of a DoS, as described in SOLAS Chapter XI-2, Regulation 10, and the ISPS Code (Incorporated by reference, see § 101.115), is to state the agreement reached between a vessel and a facility, or between vessels in the case of a vessel-to-vessel activity, as to the respective security measures each must undertake during a specific vessel-to-facility interface, during a series of interfaces between the vessel and the facility, or during a vessel-to-vessel activity.
(b) Details as to who must complete a DoS, when a DoS must be completed, and how long a DoS must be retained are included in parts 104 through 106 of this subchapter.
(c) All vessels and facilities required to comply with parts 104, 105, and 106 of this subchapter must, at a minimum, comply with the DoS requirements of the MARSEC Level set for the port.
(d) The COTP may also require a DoS be completed for vessels and facilities during periods of critical port operations, special marine events, or when vessels give notification of a higher MARSEC Level than that set in the COTP's Area of Responsibility (AOR).
Ports, vessels, and facilities required to conduct risk assessments by part 103, 104, 105, or 106 of this subchapter may use any assessment tool that meets the standards set out in part 103, 104, 105, or 106, as applicable. These tools include:
(a) DHS/TSA's vulnerability self-assessment tool located at
(b) USCG assessment tools, available from the cognizant COTP or at
(1) Navigation and Vessel Inspection Circular titled, “Guidelines for Port Security Committees, and Port Security Plans Required for U.S. Ports” (NVIC 9-02);
(2) Navigation and Vessel Inspection Circular titled, “Security Guidelines for Vessels”, (NVIC 10-02); and
(3) Navigation and Vessel Inspection Circular titled, “Security Guidelines for Facilities”, (NVIC 11-02).
(a) Any personal identification credential accepted under the access control provisions of this subchapter must, at a minimum, meet the following requirements:
(1) Be laminated or otherwise secure against tampering;
(2) Contain the individual's full name (full first and last names, middle initial is acceptable);
(3) Contain a photo that accurately depicts that individual's current facial appearance; and
(4) Bear the name of the issuing authority.
(b) The issuing authority in paragraph (a)(4) of this section must be:
(1) A government authority, or an organization authorized to act on behalf of a government authority; or
(2) The individual's employer, union, or trade association.
Coast Guard, DHS.
Temporary interim rule with request for comments and notice of meeting.
This interim rule establishes U.S. Coast Guard Captains of the Ports as Federal Maritime Security Coordinators, and establishes
Comments. To ensure that your comments and related material are not entered more than once in the docket, please submit them by only one of the following means:
(1) Electronically to the Docket Management System website at
(2) By mail to the Docket Management Facility (USCG-2003-14733), U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at (202) 493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.
You must also mail comments on collection of information to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.
If you have questions on this rule, call Lieutenant Commander Richard Teubner, U.S. Coast Guard by telephone (202) 267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or electronic mail
Due to the short timeframe given to implement these National Maritime Transportation Security initiatives, as directed by the Maritime Transportation Security Act (MTSA) of 2002 (MTSA, Public Law 107-295, 116 STAT. 2064), and to ensure all comments are in the public venue for these important rulemakings, we are not accepting comments containing protected information for these interim rules. We request you submit comments, as explained in the Request for Comments section below, and discuss your concerns or support in a manner that is not security sensitive. We also request that you not submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
Electronic forms of all comments received into any of our dockets can be searched by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor unit, etc.) and is open to the public without restriction. You may also review the Department of Transportation's complete Privacy Act Statement published in the
We encourage you to participate in this rulemaking by submitting comments and related material. Your comments will be considered for the final rule we plan to issue before November 25, 2003, to replace this interim rule. If you choose to comment on this rule, please include your name and address, identify the specific docket number for this interim rule (USCG-2003-14733), indicate the specific heading of this document to which each comment applies, and give the reason for each comment. If you have comments on another rule, please submit those comments in a separate letter to the docket for that rulemaking. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under
We will hold a public meeting on July 23, 2003, in Washington, DC at the Grand Hyatt Hotel, at the address listed under
We did not publish a notice of proposed rulemaking for this rulemaking and are making this rule effective upon publication. Section 102(d)(1) of the MTSA of 2002 (Pub. L. 107-295, 116 STAT. 2064) requires the publication of an interim rule as soon as practicable without regard to the provisions of chapter 5 of title 5, U.S. Code (Administrative Procedure Act). The Coast Guard finds that harmonization of U.S. regulations with maritime security measures adopted by the International Maritime Organization (IMO) in December 2002, and the need to institute measures for the protection
A summary of the Coast Guard's regulatory initiatives for maritime security can be found under the
For a discussion of comments on ports at the public meetings and in the docket, see the interim rule titled: “Implementation of National Maritime Security Initiatives” (USCG-2003-14792), published elsewhere in today's issue of the
This interim rule adds part 103—Area Maritime Security to a new Subchapter H of Title 33 of the Code of Federal Regulations. This interim rule integrates port security-related requirements in the MTSA of 2002 and the International Ship and Port Facility Security (ISPS) Code. In the MTSA, the port security-related requirements are contained in the elements that address Area Maritime Security Plans and Federal Maritime Security Coordinators. In the ISPS Code, the port security-related requirements are contained in elements that address Port Facility Security Plans and Port Facility Security Officers. A detailed discussion on the MTSA and the ISPS Code and the need for these regulations can be found in the interim rule titled: “Implementation of National Maritime Security Initiatives” (USCG-2003-14792), published elsewhere in today's
Part 103—Port Security is composed of the following five subparts.
This subpart applies to all vessels and facilities located in, on, under, or adjacent to waters subject to the jurisdiction of the U.S. A detailed discussion on applicability can be found in the interim rule titled: “Implementation of National Maritime Security Initiatives” (USCG-2003-14792), published elsewhere in today's
The MTSA and the International Ship and Port Facility Security (ISPS) Code use different terms to define similar, if not identical, persons or things. These differing terms sometimes match up with the terms used in subchapter H, but sometimes they do not. For a table of the terms used in subchapter H and their related terms in the MTSA and the ISPS Code,
To provide flexibility and a systems approach to security measures for certain areas, we will allow several Area Maritime Security Plans to be combined, if appropriate. This strategy is currently being used to combine the inland river systems into one Area Maritime Security Plan; a similar system-wide concept is being developed for the Great Lakes. In addition, Outer Continental Shelf (OCS) facilities in the Gulf of Mexico will be covered by a single, district-wide plan implemented by the Eighth Coast Guard District. This process includes using each Area Maritime Security Assessment to form building blocks that will be used to create a system-wide security plan methodology that identifies vulnerabilities and consequences to be mitigated using regional strategies and resources. The resulting Area Maritime Security Plan will be a single document that provides consistent security measures throughout multiple Captain of the Port (COTP) zones.
This subpart designates the Coast Guard COTP as the Federal Maritime Security Coordinator. This designation, along with a description of the COTP's authority as Federal Maritime Security Coordinator to establish, convene, and direct the Area Maritime Security (AMS) Committee, fulfills the MTSA requirement to designate a Coast Guard official as the Federal Maritime Security Coordinator.
This subpart describes the composition and responsibilities of the AMS Committee. The AMS Committee brings appropriately experienced representatives from a variety of sources in the port together to continually assess security risks to the port and determine appropriate risk mitigation strategies, develop, revise, and implement the AMS Plan. The AMS Committee may also be the mechanism by which security threats and changes in Maritime Security (MARSEC) Levels are communicated to port stakeholders. AMS Committee membership requirements and terms of office align with the criteria established in the MTSA for “Area Maritime Security Advisory Committees.” Port Security Committees, such as those operating under the guidelines of U.S. Coast Guard Navigation and Vessel Inspection Circular (NVIC) 9-02, that were established prior to the publication of this rule, are considered AMS Committees, provided they conform to the procedures set forth in these rules. The AMS Committee members may include, but are not limited to, the following stakeholders: U.S. Coast Guard, Federal, State, and local law enforcement, emergency response and public safety organizations, recreational vessel associations, environmental response organizations, labor organizations, port managers, and vessel and facility owner/operator security representatives. There must at least seven members in the AMS Committee however; there could be as many as 200 or more representatives.
This subpart directs the AMS Committee to ensure development of a risk-based AMS Assessment. The AMS Assessment is the important first step in developing an AMS Plan. This subpart lists the essential elements of an AMS Assessment, and these provisions are consistent with the elements of a “port facility security assessment” set forth in the ISPS Code. The AMS Assessment may be conducted by the AMS Committee members themselves or by persons acting on behalf of the AMS Committee. This subpart also establishes the skills and knowledge that persons conducting an AMS Assessment must possess. This subpart further identifies the process of evaluations that must be performed in the course of conducting the AMS Assessment: identification of activities or operations critical to the port area; a threat assessment; a consequence and vulnerability assessment; a categorization of each target/scenario combination; and measures that will be implemented at all MARSEC Levels. This process is consistent with the Port Security Assessment model identified in NVIC 9-02.
The following is a list of activities, operations, and infrastructure that may require assessment in the development of the AMS Plan: Highway bridges, railroad bridges, stadiums, tourist attractions, significant symbolic structures, commercial attractions,
The Coast Guard has also funded and contracted Port Security Assessments (PSA) in certain port areas throughout the U.S. The Coast Guard-sponsored PSA team, when completing the PSA, should review the AMS Assessment and AMS Plan for content and consistency. As part of the PSA, recommendations will be made to the COTP on strategies to improve their AMS Plan in the port area that was covered by the PSA. These recommendations will be part of the AMS Plan review process to ensure the AMS Committee becomes aware of the PSA results and revises the AMS Plan appropriately.
The AMS Plan is primarily a communication and coordination document. This subpart establishes the core elements of the AMS Plan and its relationship to other plans. Core elements include: Details of operational and physical measures that must be in place at all MARSEC Levels; expected timeframes for responding to security threats and changes of MARSEC Levels; communications procedures; measures to ensure the security of vessels, facilities, and operations that are not covered by the security requirements in other parts of this subchapter; measures to ensure the security of the information in the AMS Plan; periodic review, audit, and updating procedures; and procedures for reporting security incidents. These requirements are consistent with the elements of a “port facility security plan” established in the ISPS Code.
This subpart also describes the review and approval process for the AMS Plan. The COTP will submit an AMS Plan to the cognizant District Commander for review, with the Area Commander, or his/her designee, having the authority to approve or disapprove the plan. Approving officers may require additional assessment, mitigation strategies, or other measures by parties subject to Coast Guard jurisdiction as a condition of approving AMS Plans. This review chain has been established to promote plan coordination and consistency within and among Coast Guard Districts and Areas. AMS Plans will form the basis for the National Maritime Transportation Security Plan, established in the MTSA, and will be consistent with the National Transportation Security Plan. This subpart establishes exercise requirements under the AMS Plan. Exercises are an important way to improve system performance and ensure the AMS Plan remains current.
Although the exercise requirements established in this interim rule may be satisfied by a tabletop exercise, as our experience with AMS Plans matures, it may be desirable to require periodic field training exercises for the future. Therefore, public comment is requested on a requirement to conduct a maritime security field training exercise in each area covered by an AMS Plan at least once every 3 years. A maritime security field training exercise would require the deployment of personnel and equipment in accordance with the AMS Plan for the transportation security incident used for the exercise scenario. The purpose of the field training exercise would include: Evaluating the adequacy of the AMS Plan, exercising coordination and interoperability between responding security forces and exercising coordination and interoperability amongst command personnel of responding agencies (
Finally, this subpart prescribes AMS Assessment and AMS Plan records to be maintained by the COTP for 5 years, and exercise records for 2 years.
This rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and has been reviewed by the Office of Management and Budget under that Order. It requires an assessment of potential costs and benefits under section 6(a)(3) of that Order. It is significant under the regulatory policies and procedures of the Department of Homeland Security. An Assessment is available in the docket as indicated under
This rule will affect stakeholders in 47 maritime areas containing 361 ports. The regulatory assessment and analysis documentation (see docket) details estimated costs to public and private stakeholders and does not include costs to the Coast Guard.
The total cost estimate of the rule, as it pertains to AMS, is present value (PV) $477 million (2003-2012, 7 percent discount rate). The initial cost of the startup period (June 2003-December 2003) for establishing AMS Committees and creating AMS Plans is estimated to be $120 million (non-discounted) for all areas. Following the startup period, the first year of implementation (2004), consisting of monthly AMS Committee meetings and AMS Plan exercises and drills for all areas, is estimated to be $106 million (non-discounted). After the first year of implementation, the annual cost of quarterly AMS Committee meetings and AMS Plan exercises and drills for all areas is estimated to be $46 million (non-discounted). The startup period cost associated with creating AMS Committees and AMS Plans for each area is the primary cost driver of the rule. Both the startup and implementation year period (2003-2004) combined is nearly half of the total 10-year PV cost estimate, making initial development, planning, and testing the primary costs of Area Maritime Security.
This rule will require all COTPs to establish security committees, plans, training drills, and exercises for their areas, with the participation of port stakeholders in their areas. The above costs to stakeholders will be paperwork, travel, and communication costs associated with participation in AMS Plan implementation.
We estimate 1,203,200 hours of paperwork and other associated planning activities during 2003, the initial period of security meetings and development. In 2004, the first year of implementation, we estimate the value will fall slightly to 1,090,400 hours of paperwork and other related information and communication activities related to monthly AMS Committee meetings. In subsequent years, we estimate the hours will fall to 488,800 hours—annually associated
This interim rule is one of six interim rules that implement national maritime security initiatives concerning general provisions, Area Maritime Security (ports), vessels, facilities, Outer Continental Shelf (OCS) facilities, and the Automatic Identification System (AIS). The Coast Guard used the National Risk Assessment Tool (N-RAT) to assess benefits that would result from increased security for vessels, facilities, Outer Continental Shelf (OCS) facilities, and ports. The N-RAT considers threat, vulnerability, and consequences for several maritime entities in various security-related scenarios. For a more detailed discussion on the N-RAT and how we employed this tool, refer to “Applicability of National Maritime Security Initiatives” in the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
We recognized that the interim rules are a “family” of rules that will reinforce and support one another in their implementation. We must ensure, however, that risk reduction that is credited in one rulemaking is not also credited in another. For a more detailed discussion on the benefit assessment and how we addressed the potential to double-count the risk reduced, refer to
We determined annual risk points reduced for each of the six interim rules using the N-RAT. The benefits are apportioned among the Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in Table 1, the implementation of AMS Plans for the affected population reduces 135,202 risk points annually through 2012. The benefits attributable for part 101—General Provisions—were not considered separately since it is an overarching section for all the parts.
Once we determined the annual risk points reduced, we discounted these estimates to their PV (7 percent discount rate, 2003-2012) so that they could be compared to the costs. We presented the cost effectiveness, or dollars per risk point reduced, in two ways: First, we compared the first-year cost and first-year benefit because the first-year cost is the highest in our assessment as companies develop security plans and purchase equipment. Second, we compared the 10-year PV cost to the 10-year PV benefit. The results of our assessment are presented in Table 2.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 stakeholders affected by this rule include a variety of businesses and governments. The COTP will designate approximately 200 stakeholders, per maritime area, to engage in security planning, meetings, and drills. Full participation by these stakeholders will be voluntary. We estimate the first-year cost, per stakeholder, to be $12,800 (non-discounted). In subsequent years, the annual cost, per stakeholder (full participation in this rule), falls to $4,940 (non-discounted).
The results from our assessment (copy available in the docket) suggest that the impact of this rule is not significant for port and maritime area authorities,
We estimated the majority of small entities have a less than 3 percent impact on revenue if they choose to fully participate in this rule. We anticipate the few remaining small entities that may have a greater than 3 percent impact on annual revenue will either opt out (not participate) or partially participate in the rule to the extent that the impact on revenue is not a burden.
There are other stakeholders affected by this rule in addition to port authorities, owners, and operators. The stakeholders could be any entity that the COTP invites to partially or fully participate. We anticipate the impact on other possible small entity stakeholders to be minimal because of the low average annual cost per stakeholder and the voluntary nature of participating in this rule.
Therefore, 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. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under
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. If the rule would affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please consult LCDR Richard Teubner, USCG-MPS-2 by telephone, 202-267-1103, toll-free telephone, 1-800-842-8740 ext. 7-1103, or electronic mail,
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 a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other, similar actions. It modifies an existing OMB-approved collection—1625-0077 [formerly 2115-0622]. A summary of the revised collection follows.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this rule to OMB for its review of the collection of information. Due to the circumstances surrounding this temporary rule, we asked for “emergency processing” of our request. We received OMB approval for the collection of information on June 16, 2003. It is valid until December 31, 2003.
We ask for public comment on the collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.
If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under
You need not respond to a collection of information, unless it displays a currently valid control number from OMB. We received OMB approval for the collection of information on June 16, 2003. It is valid until December 31, 2003.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. This rule is exempted from assessing the effect of the regulatory action as required by the Act because it is necessary for the national security of the U.S. (2 U.S.C. 1503(5)).
This interim rule will not effect taking of private property or, otherwise, have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This interim 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 interim rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. While this rule is an economically significant rule, it does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This interim 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 tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this interim 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. Although it is a “significant regulatory action” under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This interim rule has a positive effect on the supply, distribution, and use of energy. The interim rule provides for security assessments, plans, procedures, and standards, which will prove beneficial for the supply, distribution, and use of energy at increased levels of maritime security.
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the U.S. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The Act also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We have assessed the potential effect of this interim rule and have determined that it would likely create obstacles to the foreign commerce of the U.S. However, because these regulations are being put in place in order to further a legitimate domestic objective, namely to increase the security of the U.S., any obstacles created by the regulation are not considered unnecessary obstacles.
We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(a) and (34)(c) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This interim rule concerns security assessments and the establishment of security committees and coordinators that will contribute to a higher level of marine safety and security for U.S. ports. A “Categorical Exclusion Determination” is available in the docket where indicated under
This rulemaking will not significantly impact the coastal zone. Further, the rulemaking and the execution of this rule will be done in conjunction with appropriate State coastal authorities. The Coast Guard will, therefore, comply with the requirements of the Coastal Zone Management Act while furthering its intent to protect the coastal zone.
Facilities, Harbors, Maritime security, Ports, Reporting and recordkeeping requirements, Security measures, Vessels, Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. 70102, 70103, 70104, 70112; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.
This part applies to all vessels and facilities located in, on, under, or adjacent to waters subject to the jurisdiction of the U.S.
Except as specifically stated in this subpart, the definitions in part 101 of this subchapter apply to this part.
The COTPs are the Federal Maritime Security Coordinators for their respective COTP zones described in 33 CFR part 3, including all ports and areas located therein.
(a) Without limitation to the authority vested in the COTP by statute or regulation, and in addition to authority prescribed elsewhere in this part, the COTP as the FMSC is authorized to:
(1) Establish, convene, and direct the Area Maritime Security (AMS) Committee;
(2) Appoint members to the AMS Committee;
(3) Develop and maintain, in coordination with the AMS Committee, the AMS Plan;
(4) Implement and exercise the AMS Plan; and
(5) Maintain the records required by § 103.520 of this part.
(b) The authorizations in paragraph (a) of this section do not limit any other existing authority of the COTP.
(a) The AMS Committee is established under the direction of the COTP and shall assist in the development, review, and update of the AMS Plan for their area of responsibility. For the purposes of this subchapter, Port Security Committees that were established prior to July 1, 2003, according to guidance issued by the Coast Guard, may be considered AMS Committees, provided they conform to the procedures established by this part and satisfy the membership requirements of § 103.305 of this part.
(b) The AMS Committee will operate under terms specified in a written charter. At a minimum, the charter must address:
(1) The AMS Committee's purpose and geographic area of responsibility;
(2) Rules for membership;
(3) The AMS Committee's organizational structure and procedural rules of order;
(4) Frequency of meetings, to include not less than once in a calendar year or when requested by a majority of the AMS Committee members;
(5) Guidelines for public access to AMS Committee meetings and records; and
(6) Rules for handling and protecting classified, sensitive security, commercially sensitive, and proprietary information.
(a) An AMS Committee must be composed of not less than seven members, each having at least 5 years of experience related to maritime or port security operations, and who may be selected from:
(1) The Federal, Territorial, or Tribal government;
(2) The State government and political subdivisions thereof;
(3) Local public safety, crisis management and emergency response agencies;
(4) Law enforcement and security organizations;
(5) Maritime industry;
(6) Other port stakeholders having a special competence in maritime security; and
(7) Port stakeholders affected by security practices and policies.
(b) Members appointed under this section serve for a term of not more than 5 years. In appointing members, the COTP should consider the skills required by § 103.410 of this part. Prior to the appointment of an individual to a position on the AMS Committee, the COTP may require an appropriate security background examination of the candidate member.
(a) The AMS Committee shall:
(1) Identify critical port infrastructure and operations;
(2) Identify risks (threats, vulnerabilities, and consequences);
(3) Determine mitigation strategies and implementation methods;
(4) Develop and describe the process to continually evaluate overall port security by considering consequences and vulnerabilities, how they may change over time, and what additional mitigation strategies can be applied; and
(5) Provide advice to, and assist the COTP in, developing the AMS Plan.
(b) The AMS Committee shall also serve as a link for communicating threats and changes in MARSEC Levels, and disseminating appropriate security information to port stakeholders.
(a) The Area Maritime Security (AMS) Committee will ensure that a risk based AMS Assessment, is completed and meets the requirements specified in § 103.310 of this part and § 101.510 of this subchapter, incorporating the elements specified in § 103.405 of this part.
(b) AMS Assessments can be completed by the COTP, the AMS Committee, a Coast Guard Port Security Assessment team, or by another third party approved by the AMS Committee.
(c) Upon completion of each AMS Assessment, a written report, which is designated sensitive security information, must be prepared consisting of:
(1) A summary of how the AMS Assessment was conducted;
(2) A description of each vulnerability and consequences found during the AMS Assessment; and
(3) A description of risk reduction strategies that could be used to ensure continued operation at an acceptable risk level.
(a) The AMS Assessment must include the following elements:
(1) Identification of the critical Marine Transportation System infrastructure and operations in the port;
(2) Threat assessment that identifies and evaluates each potential threat on the basis of various factors, including capability and intention;
(3) Consequence and vulnerability assessment for each target/scenario combination; and
(4) A determination of the required security measures for the three MARSEC Levels.
(b) In order to meet the elements listed in paragraph (a) of this section, an AMS Assessment should consider each of the following:
(1) Physical security of infrastructure and operations at the port;
(2) Structures considered critical for the continued operation of the port;
(3) Existing security systems and equipment available to protect maritime personnel;
(4) Procedural policies;
(5) Radio and telecommunication systems, including computer systems and networks;
(6) Relevant transportation infrastructure;
(7) Utilities;
(8) Security resources and capabilities; and
(9) Other areas that may, if damaged, pose a risk to people, infrastructure, or operations within the port.
(c) AMS Assessments are sensitive security information and must be protected in accordance with 49 CFR part 1520.
The persons carrying out the AMS Assessment must have the appropriate skills to evaluate the security of the port in accordance with this part. This includes being able to draw upon expert assistance in relation to:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances, and devices;
(c) Recognition, on a non-discriminatory basis, of characteristics and behavioral patterns of persons who are likely to threaten security;
(d) Techniques used to circumvent security measures;
(e) Methods used to cause a transportation security incident;
(f) Effects of dangerous substances and devices on structures and port services;
(g) Port security requirements;
(h) Port business practices;
(i) Contingency planning, emergency preparedness, and response;
(j) Physical security measures;
(k) Radio and telecommunications systems, including computer systems and networks;
(l) Transportation and civil engineering;
(m) Vessel and port operations; and
(n) Knowledge of the impact, including cost impacts of implementing security measures on port operations.
(a) The Area Maritime Security (AMS) Plan is developed by the COTP, in consultation with the AMS Committee, and is based on an AMS Assessment that meets the provisions of subpart D of this part. The AMS Plan must be consistent with the National Maritime Transportation Security Plan and the National Transportation Security Plan.
(b) AMS Plans are sensitive security information and must be protected in accordance with 49 CFR part 1520.
The AMS Plan should address the following elements, as applicable:
(a) Details of both operational and physical measures that are in place in the port at MARSEC Level 1;
(b) Details of the additional security measures that enable the port to progress, without delay, to MARSEC Level 2 and, when necessary, to MARSEC Level 3;
(c) Details of the security incident command-and-response structure;
(d) Details for regular audit of the AMS Plan, and for its amendment in response to experience or changing circumstances;
(e) Measures to prevent the introduction of dangerous substances and devices into designated restricted areas within the port;
(f) Measures to prevent unauthorized access to designated restricted areas within the port;
(g) Procedures and expected timeframes for responding to security threats or breaches of security, including provisions for maintaining infrastructure and operations in the port;
(h) Procedures for responding to any security instructions the Coast Guard announces at MARSEC Level 3;
(i) Procedures for evacuation within the port in case of security threats or breaches of security;
(j) Procedures for periodic plan review, exercise, and updating;
(k) Procedures for reporting transportation security incidents (TSI);
(l) Identification of, and methods to communicate with, Facility Security Officers (FSO), Company Security Officers (CSO), Vessel Security Officers (VSO), public safety officers, emergency response personnel, and crisis management organization representatives within the port, including 24-hour contact details;
(m) Measures to ensure the security of the information contained in the AMS Plan;
(n) Security measures designed to ensure effective security of infrastructure, special events, vessels, passengers, cargo, and cargo handling equipment at facilities within the port not otherwise covered by a Vessel or Facility Security Plan, approved under part 104, 105, or 106 of this subchapter;
(o) Procedures to be taken when a vessel is at a higher security level than the facility or port it is visiting;
(p) Procedures for responding if a vessel security alert system on board a vessel within or near the port has been activated;
(q) Procedures for communicating appropriate security and threat information to the public;
(r) Procedures for handling reports from the public and maritime industry regarding suspicious activity;
(s) Security resources available for incident response and their capabilities;
(t) Procedures for responding to a TSI; and
(u) Procedures to facilitate the recovery of the Marine Transportation System after a TSI.
Each AMS Plan will be submitted to the cognizant District Commander for review and then forwarded to the Area Commander for approval.
(a) The COTP shall coordinate with the Area Maritime Security (AMS) Committee to conduct an exercise at least once each calendar year, with no more than 18 months between exercises, to test the effectiveness of the AMS Plan.
(b) An exercise may consist of any of the following:
(1) A tabletop exercise to validate the AMS Plan. No equipment or personnel deployment is required;
(2) A field training exercise consisting of personnel deployment and use of security equipment; or
(3) A combination of § 103.515(b)(1) and (b)(2).
(c) Upon concurrence of the cognizant District Commander, an actual increase in MARSEC Level, or implementation of enhanced security measures during periods of critical port operations or special marine events may satisfy the exercise requirements of this section.
(a) All records pertaining to the Area Maritime Security (AMS) Assessment and AMS Plan will be retained by the COTP for 5 years.
(b) Exercise documentation will be kept by the COTP for 2 years.
Coast Guard, DHS.
Temporary interim rule with request for comments and notice of meeting.
This interim rule provides security measures for certain vessels calling on U.S. ports. It requires the owners or operators of vessels to designate security officers for vessels, develop security plans based on security assessments, implement security measures specific to the vessel's operation, and comply with Maritime Security Levels. This interim rule is one of six interim rules in today's
Effective date. This interim rule is effective from July 1, 2003 until November 25, 2003, with the exception of amendatory instructions 2, 5, 6, 8, 9, 10, 12, 14, 15, 16, 18, and 19 which are effective July 1, 2003. The Coast Guard intends to finalize these amendments by November 25, 2003. On July 31, 2003, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this rule.
(1) Electronically to the Docket Management System Web site at
(2) By mail to the Docket Management Facility (USCG-2003-14749), U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
You must also mail comments on collection of information to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.
If you have questions on this rule, call Lieutenant Kevin Oditt (G-MP), U.S. Coast Guard by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or electronic mail
If you have questions on viewing or submitting material to the docket, call Ms. Dorothy Beard, Chief, Dockets, Department of Transportation, and telephone 202-366-5149.
Due to the short timeframe given to implement these National Maritime Transportation Security initiatives, as directed by the Maritime Transportation Security Act (MTSA), and to ensure all comments are in the public venue for these important rulemakings, we are not accepting comments containing protected information for these interim rules. We request you submit comments, as explained in the
The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
We encourage you to participate in this rulemaking by submitting comments and related material. Your comments will be considered for the final rule we plan to issue before November 25, 2003, to replace this interim rule. If you choose to comment on this rule, please include your name and address, identify the specific docket number for this interim rule (USCG-2003-14749), indicate the specific heading of this document to which each comment applies, and give the reason for each comment. If you have comments on another rule, please submit those comments in a separate letter to the docket for that rulemaking. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under
We will hold a public meeting on July 23, 2003, in Washington, DC at the Grand Hyatt Hotel, at the address listed under
We did not publish a notice of proposed rulemaking for this rulemaking and are making this rule effective upon publication. Section 102(d)(1) of the Maritime Transportation Security Act of 2002 (MTSA, Pub. L. 107-295, 116 STAT. 2064) requires the publication of an interim rule as soon as practicable without regard to the provisions of chapter 5 of title 5, U.S. Code (Administrative Procedure Act). The Coast Guard finds that harmonization of U.S. regulations with maritime security measures adopted by the International Maritime Organization (IMO) in December 2002, and the need to institute measures for the protection of U.S. maritime security as soon as practicable, furnish good cause for this interim rule to take effect immediately under both the Administrative Procedure Act and section 808 of the Congressional Review Act.
A summary of the Coast Guard's regulatory initiatives for maritime security can be found under the
For a discussion of comments on vessels at the public meetings and in the docket, see the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
This interim rule regulates the owners or operators of certain classes of vessels, in order to provide greater security to these vessels and to other vessels or ports with which a vessel interfaces. The interim rule adds part 104, Vessel Security, to the new subchapter H, Maritime Security of Title 33 of the Code of Federal Regulation. A general description of the process used in developing subchapter H and its component parts appears in the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792).
The MTSA and the International Ship and Port Facility Security (ISPS) Code use different terms to define similar, if not identical, persons or things. These differing terms sometimes match up with the terms used in subchapter H, but sometimes they do not. For a table of the terms used in subchapter H and their related terms in the MTSA and the ISPS Code, see the
The purpose of this rulemaking is to require certain vessels to perform security assessments, develop security plans, and implement security measures and procedures in order to reduce the risk of and to mitigate the results of an act that threatens the security of the crew, the vessel, or the public. This rulemaking combines international requirements and existing domestic policy and is published as a part of a new subchapter on maritime security. The MTSA mandates vessels that are required to conduct security assessments and develop security plans to submit their vessel security plan within 6 months of the publication of this interim rule. It also mandates that the vessels shall be in compliance with their approved security plan within 12 months of the publication of this interim rule. However, consistent with customary international law, the requirements in part 104 do not apply to vessels engaged in innocent passage through the territorial sea of the U.S. or in transit passage through the navigable waters of the U.S. that form part of an international strait.
Part 104 consists of four Subparts: Subpart A (General), subpart B (Vessel Security Requirements), subpart C (Vessel Security Assessment), and subpart D (Vessel Security Plan). Where appropriate, the requirements discussed in part 104 are consistent with requirements in the ISPS Code, and include the requirements discussed below.
U.S. flag vessel compliance with this part will be verified during inspections by the Coast Guard as provided in 46 CFR part 2. 46 CFR subchapters D, H, I, K, L, and T will be amended to require that a certificate of inspection be based on the condition that the vessel meets the requirements of 33 CFR subchapter H and specifically this part.
Foreign vessels that have on board a valid International Ship Security Certificate that attests to the vessel's compliance with International Convention for Safety of Life at Sea, 1974, (SOLAS) and the ISPS Code, part A, and the relevant provisions in the ISPS Code, part B, of will be deemed in compliance with this part, except for those sections otherwise specified. Foreign vessel compliance will be verified during Port State Control verification exams.
The interim rule also affects the Notice of Arrival rule in part 160 of title 33, U.S. Code. These changes provide the Coast Guard with additional information essential to our exercise of Port State Control functions and to our imposition of control and compliance measures on foreign vessels bound for a port or place in the U.S., consistent with MTSA and with SOLAS regulation XI-2/9. A foreign vessel already covered by the Notice of Arrival rule will have to provide information about its International Ship Security Certificate and its implementation of an approved security plan.
As required by SOLAS Chapter XI-2 Regulation 3 and the ISPS Code, part A, section 5, the Coast Guard has published additional requirements for vessels calling in the U.S. in §§ 104.240 and 104.255 of 33 CFR 104. These sections provide the U.S. requirements for setting and communicating changes in Maritime Security Level, completing Declarations of Security, and additional instructions for all vessels when Maritime Security Level 3 is set.
The waiver section details procedures for requesting a waiver for the benefit of vessel owners or operators who find specific requirements of the rulemaking to be unnecessary.
The equivalents section details procedures for requesting an equivalency for specific requirements of the rulemaking. Equivalents are intended to allow vessel owners or operators to provide an alternative provision or arrangement that provides the same level of security as a specific requirement contained within this part.
This part makes provision to allow owners or operators of vessels on domestic voyages only to implement an Alternative Security Program that has been reviewed and accepted by the Commandant (G-MP), to meet the requirements of this part. Alternative Security Programs must be comprehensive and based on a security assessment to demonstrate it meets the intent of each section of this part. Owners or operators are required to implement an appropriate Alternative Security Program in its entirety to be deemed in compliance with this part.
We also strongly encourage industry groups to develop and submit “model programs,” which would include a model Vessel Security Plan and assessment of their own. A model program is one that, once submitted and reviewed and approved by Commandant (G-MP), may be used as a template for other vessels in the fleet. However, a Vessel Security Plan constructed using a model plan would still require submission for approval by the Coast Guard.
The process of the review and acceptance of model programs will be the same as the process used for the Alternative Security Program. The submission of a model program will need to include a general assessment for the applicable segment of the industry for which the model program is intended. The submission must also include how owners or operators will implement the model program including performing an operational and vessel-specific assessment and verification of implementation. Once these model programs are accepted, the programs could be used by industry to develop vessel-specific plans and assessments for Coast Guard approval.
In our evaluation of waivers, equivalencies, and Alternative Security Programs, the Coast Guard will accept a self-assessment or demonstration using any risk management tools acceptable to the Coast Guard. This demonstration may be requested to show that the proposed waiver, equivalency or Alternative Security Program is at least as effective as that intended by this interim rule.
The owner or operator of a vessel is generally responsible for all requirements imposed by this part. These requirements include ensuring the following: The performance of all vessel security duties; defining the security organizational structure for each vessel; providing each person(s) exercising security duties or responsibilities within that structure with the support needed to fulfill those obligations; that personnel receive training, drills, and exercises enabling them to perform their assigned security duties; and that adequate coordination of security issues between vessels and facilities take place.
This interim rule requires that each vessel owner or operator appoint a Company Security Officer, designated in writing, for their fleet of vessels or for each individual vessel that is owned or operated by the company. The Company Security Officer may be a full time or collateral position. A Company Security Officer may perform other duties within the owner's or operator's organization provided he or she is able to perform the duties and responsibilities required of the Company Security Officer. The Company Security Officer may also be the Vessel Security Officer, provided he or she is also able to perform the duties and responsibilities required of the Company Security Officer. Generally, this provision is for vessels operating on restricted routes in a single COTP zone and for unmanned vessels.
The Company Security Officer must have a general knowledge in a range of issues, such as company security organization, relevant international laws, domestic regulations, current security threats and patterns, risk assessment methodology, and in conducting audits, inspections, and control procedures.
The CSO may delegate the duties imposed on the Company Security Officer by this part, but remains responsible for the performance of those duties. The most important duties of the Company Security Officer include ensuring that: A Vessel Security Assessment is conducted; a Vessel Security Plan is developed, approved, maintained, and implemented; the Vessel Security Plan is modified when necessary; vessel security activities are audited as appropriate; problems identified by audits or inspections are addressed in a timely fashion; adequate security training; and communication and cooperation between the vessel and facilities.
This interim rule requires that a Vessel Security Officer is designated in writing for each vessel. The Vessel Security Officer must have a general knowledge in a range of issues, such as security administration, relevant international laws, domestic regulations, current security threats and patterns, risk assessment methodology, and in conducting audits, inspections, and control procedures. The most important duties that must be performed by the Vessel Security Officer includes implementing a Vessel Security Plan; ensuring that adequate training is provided to vessel personnel; ensuring the vessel is operating in accordance with the plan and in continuous compliance with part 104; and periodically auditing and updating the Vessel Security Assessment and Vessel Security Plan. The Vessel Security Officer may assign security duties to other vessel personnel; however, the Vessel Security Officer remains responsible for security duties.
Required training for vessel personnel must be specified in the Vessel Security Plan. Specific security training courses for the Vessel Security Officer and vessel personnel will not be required by the Coast Guard. While formal training may be necessary, we will not mandate specifics. Vessel owners or operators must certify that security personnel are, in fact, properly trained to perform their duties. The types of training required must also be consistent with the training requirements described in this subpart. The Vessel Security Officer is also required to ensure that vessel security persons possess necessary training to maintain the overall security of the facility.
Exercises are required to ensure the adequacy of the Facility Security Plans and are required to be conducted at least once each calendar year, with not more than 18 months between exercises. Drills, which are smaller in scope than exercises, must be conducted at least every 3 months.
Exercises may be vessel specific, or as part of a cooperative exercise program with applicable Facility and Vessel Security Plans or Port exercises. Exercises for security may be combined with other required exercises, as appropriate.
Procedures and/or policies must be developed and implemented to ensure security systems and equipment are tested and operated in accordance with the instructions of the manufacturer and ready for use.
Security measures for specific activities must be scalable in order to provide increasing levels of security at increasing Maritime Security (MARSEC) Levels. An effective security program relies on detailed procedures that clearly indicate the preparation and prevention activities that will occur at each threat level and the organizations, or personnel, who are responsible for carrying out those activities. Security Measures must be developed for the following activities:
• Security measures for access control;
• Security measures for restricted areas;
• Security measures for handling cargo;
• Security measures for delivery of vessel stores and bunkers; and
• Security measures for monitoring.
Each vessel owner or operator must develop security incident procedures for responding to transportation security incidents. The security incident procedures must explain the vessel's reaction to an emergency, including the notification and coordination with local, State, and federal authorities and Under Secretary of Emergency Preparedness and Response. The security incident procedures must also explain actions for securing the vessel and evacuating passengers and crew.
A Declaration of Security provides a means for ensuring that critical security concerns are properly addressed prior to and during a vessel-to-facility interface. The Declaration of Security addresses security by delineating responsibilities for security arrangements and procedures between a vessel and a facility. This requirement is similar to the existing U.S. practice for vessel-to-facility oil transfer proceedings.
Only certain passenger vessels and vessels carrying Certain Dangerous Cargoes will complete a Declaration of Security for every evolution regardless of the Maritime Security Level. At Maritime Security Levels 2 and 3, all vessels and facilities would need to complete the Declaration of Security.
Vessels that frequently call on the same facility may execute a continuing Declaration of Security—a single Declaration of Security for multiple visits.
All Declarations of Security must state the security activities for which the facility and vessel are responsible during vessel-to-vessel or vessel-to-facility interfaces. Declarations of Security must be kept as part of the vessel's recordkeeping.
Vessels that are operating at a higher Security Level than the port that the vessel is calling at may request a Declaration of Security with the facility, and the facility must complete a Declaration of Security with the vessel. Additionally, a facility may request that a vessel complete a Declaration of Security with the facility as appropriate for that facility's Security Plan or direction of the COTP. If the facility owner or operator requires a Declaration of Security, the vessel must comply. The conditions under which a vessel may request a Declaration of Security from the facility must be included in the Vessel Security Plan.
This interim rule requires all vessels covered by part 104 to conduct a Vessel Security Assessment, which is an essential and integral part of the process for developing and updating the required Vessel Security Plan. The Vessel Security Assessment is based in part on an on-scene security survey, which details the overall assessment of the vessel including any existing security measures, and includes a written report documenting the vulnerabilities and mitigation strategies of the vessel. As discussed in the interim rule “Implementation of National Maritime Security Initiatives” (USCG-2003-14792), 33 CFR 101.510 lists the various assessment tools that may be used to meet the risk assessment requirements in parts 104 through 106 of this subchapter. The assessment tools listed are sufficient to enable the development of the Vessel Security Program. This list is also provided to ensure that the Vessel Security Assessment is consistent with other modal assessments. We are working with other agencies to develop assessment tools that are sensitive to the diversity of the National Marine Transportation System to ensure consistent levels of security throughout the entire System. The designated Company Security Officer must conduct the on-scene survey by examining and evaluating existing vessel protective measures, procedures, and operations. Using the information obtained in the on-scene survey, the Company Security Officer must ensure the completion ot the Vessel Security Assessment. The Vessel Security Assessment identifies and evaluates, in writing, existing security measures; key vessel operations; the likelihood of possible threats to key vessel operations; and weaknesses, including human factors in the infrastructure, policies, and procedures of the vessel.
It also includes a written summary of how the assessment was conducted; each vulnerability found during the assessment; and countermeasures that could be used to address each vulnerability. The Vessel Security Assessment must be reviewed and updated each time the Vessel Security Plan is revised and when the Vessel Security Plan is submitted for re-approval every 5 years.
This interim rule requires each vessel owner or operator to develop an effective Vessel Security Plan that incorporates detailed preparedness, prevention, and response activities for each Maritime Security Level, along with the organizations or personnel responsible for carrying out those activities. The requirements discussed in this part are consistent with requirements in the ISPS Code.
The Vessel Security Plan is a document, written in English, that is prepared in response to the Vessel Security Assessment and approved by the Coast Guard. A single Vessel Security Plan can apply to more than one vessel to the extent that they share physical characteristics and operations.
In addition to other things, the Vessel Security Plan must: respond specifically to any recommendations made by the Vessel Security Assessment; describe how, at each Maritime Security Level, the vessel will apply the security measures required in these regulations; state the Master's authority; must detail the organizational structure of security for the vessel; detail the duties and responsibilities of all vessel and company personnel with a security role; detail the vessel's relationship with the Company, facilities, other vessels, and relevant authorities with security responsibility; provide regular audit of the Vessel Security Plan and its amendment in response to experience or changing circumstances; and establish the procedures needed to assess the continuing effectiveness of security procedures and all security related equipment and systems, including procedures for identifying and responding to equipment or systems failure or malfunction.
The responsibility for barge security lies not only with the barge owner or operator but also with the towing vessel, fleeting facility, and facility where the barge is moored. Hence, security plans for vessels and facilities that interface with unmanned vessels (
Vessel and facility security plans must address how the vessel or facility will apply the necessary security measures when engaged with a barge.
Facilities and towing vessels are not required to have a copy of the security plan for each barge it handles if the facility or towing vessel security plan includes appropriate procedures and security measures to ensure the security of all barges in its care. It is the responsibility of all Security Officers (barge's Vessel Security Officer, the towing vessel's Vessel Security Officer, the Company Security Officer, and the Facility Security Officer) to coordinate plans and ensure, possibly through a written contract or other agreement, that each party that receives the barge understands and is capable of implementing specific security measures for it. This may entail providing a copy of the applicable sections of a barge's Vessel Security Plan to the parties involved.
As a result, a barge's Vessel Security Plan may be minimal in content, containing personnel contact information and an assessment of the worst-case damage it might produce. The security plan must explain how security will be coordinated with each towing vessel, fleeting facility, and facility that handles the barge. Existing plans and procedures, such as vessel response plans, may be used or referenced as part of the Vessel Security Plan.
Like other Vessel Security Plans, the barge's Vessel Security Plan must also include specific security incident procedures to mitigate the consequences of damage and/or a release of the barge's cargo.
Foreign vessels required to comply with SOLAS are not required to submit their Vessel Security Plans to the Coast Guard for approval. Pursuant to SOLAS and the ISPS Code, these plans are required to be approved by the flag administration or Recognized Security Organization (RSO). Approval can only be granted by the flag administration or the RSO after verification that the Vessel Security Plan meets the requirements of SOLAS and the ISPS Code, part A, taking into account the ISPS Code, part B. Even so, the Coast Guard will verify that foreign SOLAS vessels have an approved Vessel Security Plan that fully complies with SOLAS and the ISPS Code, and thereby meets the requirements of this part, through an aggressive Port State Control program. Noncompliance will subject the vessel to a range of control and compliance measures, which could include denial of entry into port. If, during an expanded examination, those sections of the Vessel Security Plan the port state is allowed to review are not written in English, a vessel may be delayed while translator services are acquired. To properly reflect the full range of legal authorities to control vessel movement in such cases, and without affecting other legal authorities, this rule amends the authority provision in 33 CFR part 165 to cite the anti-terrorism authorities in 33 U.S.C. 1226 as an additional basis for taking action under 33 CFR part 165.
However, in certain cases foreign vessel owners or operators will be required to submit the Vessel Security Plan to the U.S. for approval. Generally, these vessels fall into three categories: (1) A commercial vessel meeting the applicability standards of these regulations from a nation not signatory to SOLAS; (2) Canadian commercial vessels operating solely on the Great Lakes that (a) are greater than 100 gross register tons or (b) carry more than 12 passengers; and (3) other foreign commercial vessels meeting the applicability standards of this part, but below 500 gross tonnage, ITC and above 100 gross register tons.
The Vessel Security Plan, including the Vessel Security Assessment report, must be submitted to and reviewed by the Commanding Officer, Marine Safety Center (MSC). Once the MSC finds that the plan meets the security requirements in part 104, the submitter will receive an approval letter that may contain conditions of the approval.
If the MSC requires more time than is indicated in the requirements of the interim rule to review a submitted Vessel Security Plan, the MSC may return to the submitter a written acknowledgement stating that the Coast Guard is currently reviewing the Vessel Security Plan submitted for approval, and that the vessel may continue to operate so long as the vessel remains in compliance with the submitted Vessel Security Plan.
If the MSC finds that the Vessel Security Plan does not meet the security requirements, the plans would be returned to the vessel with a disapproval letter with an explanation of why the plan does not meet the part 104 requirements.
The Coast Guard must review Vessel Security Plans every time:
• The Vessel Security Assessment is altered;
• Failures are identified during an exercise of the Vessel Security Plan; and
• There is a change in ownership or operational control of the vessel or there are amendments to the Vessel Security Plan.
33 CFR part 120, Security of Vessels, currently exists but applies only to cruise ships. Until July 2004, 33 CFR part 120 will remain in effect. Vessels that were required to comply with part 120 will now also be required to meet the requirements of this part including § 104.295, titled Additional requirements—Cruise Ships. The requirements in § 104.295 generally capture the existing requirements in part 120 that are specific for cruise ships and captures additional detail to the requirements of SOLAS Chapter XI-2 and the ISPS Code.
The Coast Guard Notice of Arrival regulation, 33 CFR part 160, is being amended by this interim rule to require the advance submission of additional security related information. This information is essential to assist Coast Guard officials in exercising Port State Control functions, including what control and compliance measures, if any, should be imposed on vessels bound for a port or place in the U.S., consistent with 46 U.S.C. 70103 and 70110 or SOLAS regulation XI-2/9.
The Notice of Arrival amendments also provide an initial indication to the U.S. that owners and operators are taking responsibility for fully complying with the requirements in this part. For example, vessels will be required to provide a statement that the vessel is in compliance with the ISPS Code prior to entry into ports in the U.S. by informing the National Vessel Movement Center of the type and status of its International Ship Security Certificate. Those vessels required to have on board an approved Vessel Security Plan will also have to declare in the Notice of Arrival submission that they are implementing their Vessel Security Plan. Furthermore, because it is not the intent of the ISPS Code to allow consecutive Interim International Ship Security Certificates, the owner or operator of a vessel holding a consecutive Interim International Ship Security Certificate will also be required to provide an explanation as to why the vessel holds a consecutive Interim International Ship Security Certificate prior to entry.
The information we are requiring in this Notice of Arrival amendment contains elements similar to those we mandate to verify compliance with the International Management Code for the Safe Operation of Ships and for
This interim rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and has been reviewed by the Office of Management and Budget under that Order. It requires an assessment of potential costs and benefits under section 6(a)(3) of that Order. It is significant under the regulatory policies and procedures of the Department of Homeland Security. A Cost Assessment is available in the docket as indicated under
For the purposes of good business practice or regulations promulgated by other Federal and State agencies, many companies already have spent a substantial amount of money and resources to upgrade and improve security. The costs shown in this assessment do not include the security measures these companies have already taken to enhance security.
We realize that every company engaged in maritime commerce would not implement the interim rule exactly as presented in this assessment. Depending on each company's choices, some companies could spend much less than what is estimated herein while others could spend significantly more. In general, we assume that each company would implement the interim rule based on the type of vessels or facilities it owns or operates and whether it engages in international or domestic trade.
This assessment presents the estimated cost if vessels are operating at Maritime Security Level 1, the current level of operations since the events of September 11, 2001. We also estimated the costs for operating for a brief period at Maritime Security Level 2, an elevated level of security.
We do not anticipate that implementing the interim rule will require additional manning aboard vessels; existing personnel can assume the duties envisioned.
The interim rule will affect about 10,300 U.S. flag SOLAS, domestic (non-SOLAS), and about 70 foreign non-SOLAS vessels.
The estimated cost of complying with the interim rule is Present Value (PV) $1.368 billion (2003-2012, 7 percent discount rate). Approximately PV $248 million of this total is attributable to U.S. flag SOLAS vessels. Approximately PV $1.110 billion is attributable to domestic vessels (non-SOLAS), and PV $10 million is attributable to foreign non-SOLAS vessels. In the first year of compliance, the cost of purchasing equipment, hiring security officers, and preparing paperwork is an estimated $218 million (non-discounted, $42 million for the U.S. flag SOLAS fleet, $175 million for the domestic fleet, $1 million for the foreign non-SOLAS fleet). Following initial implementation, the annual cost of compliance is an estimated $176 million (non-discounted, $32 million for the U.S. flag SOLAS fleet, $143 million for the domestic fleet, $1 million for the foreign non-SOLAS fleet).
For the U.S. flag SOLAS fleet, approximately 52 percent of the initial cost is for hiring Company Security Officers and training personnel, 29 percent is for vessel equipment, 12 percent is for assigning Vessel Security Officers to vessels, and 7 percent is associated with paperwork (Vessel Security Assessment and Vessel Security Plan). Following the first year, approximately 72 percent of the cost is for Company Security Officers and personnel training, 3 percent is for vessel equipment, 10 percent is for drilling, 15 percent is for Vessel Security Officers, and less than 1 percent is associated with paperwork. Company Security Officers and training are the primary cost drivers for U.S. flag SOLAS vessels.
For the domestic fleet, approximately 51 percent of the initial cost is for hiring Company Security Officers and training personnel, 29 percent is for vessel equipment, 14 percent is for assigning Vessel Security Officers to vessels, and 6 percent is associated with paperwork (Vessel Security Assessments and Vessel Security Plans). Following the first year, approximately 61 percent of the cost is for Company Security Officers and training, 6 percent is for vessel equipment, 11 percent is for drilling, 22 percent is for VSOs, and less than 1 percent is associated with paperwork. As with SOLAS vessels, Company Security Officers are the primary cost driver for the domestic fleet.
We estimated approximately 135,000 burden hours for paperwork during the first year of compliance (33,000 hours for U.S.-flag SOLAS, 101,000 hours for the domestic fleet, 1,000 hours for the foreign non-SOLAS fleet). We estimated approximately 12,000 burden hours annually following full implementation of the interim rule (2,000 hours for U.S.-flag SOLAS, 10,000 hours for the domestic fleet, less than 1,000 hours for the foreign non-SOLAS fleet).
We also estimated the annual cost for going to an elevated security level, Maritime Security Level 2, in response to increased threats. The duration of the increased security level will be entirely dependent on intelligence received. For this assessment, we estimated costs for Maritime Security Level 2 using the following assumptions: all ports will go to Maritime Security Level 2 at once, each elevation will last 21 days, and the elevation will occur twice a year. The estimated cost associated with these conditions is $235 million annually.
This interim rule is one of six interim rules that implement national maritime security initiatives concerning general provisions, Area Maritime Security (ports), vessels, facilities, Outer Continental Shelf (OCS) facilities, and AIS. The Coast Guard used the National Risk Assessment Tool (N-RAT) to assess benefits that would result from increased security for vessels, facilities, OCS facilities, and ports. The N-RAT considers threat, vulnerability, and consequences for several maritime entities in various security-related scenarios. For a more detailed discussion on the N-RAT and how we employed this tool, refer to
We recognized that the interim rules are a “family” of rules that will reinforce and support one another in their implementation. We have ensured, however, that risk reduction that is credited in one rulemaking is not also credited in another. For a more detailed discussion on the benefit assessment and how we addressed the potential to double-count the risk reduced, refer to
We determined annual risk points reduced for each of the six interim rules using the N-RAT. The benefits are apportioned among the Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in Table 1, the implementation of Vessel Security Plans for the affected population reduces 781,285 risk points annually through 2012. The benefits attributable for part 101—General Provisions—were not considered separately since it is an overarching section for all the parts.
Once we determined the annual risk points reduced, we discounted these estimates to their present value (7 percent discount rate, 2003-2012) so that they could be compared to the costs. We presented the cost effectiveness, or dollars per risk point reduced, in two ways: first, we compared the first-year cost and first-year benefit because first-year cost is the highest in our assessment as companies develop security plans and purchase equipment. Second, we compared the 10-year PV cost and the 10-year PV benefit. The results of our assessment are presented in Table 2.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this interim 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. This interim rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this interim rule is exempt, we have reviewed it for potential economic impacts on small entities. An Initial Regulatory Flexibility Analysis discussing the impact of this interim rule on small entities is available in the docket where indicated under
We estimated that 88 companies that own U.S. flag SOLAS vessels will be affected by the interim rule. We researched these companies and found revenue data for 32 of them (36 percent). The revenue impacts for these vessels are presented in Table 3. In this analysis, we considered the impacts to small businesses during the first year of implementation, when companies will be conducting assessments, developing security plans, and purchasing equipment. We also considered annual revenue impacts following the first year, when companies will have the assessments and plans complete, but will need to conduct quarterly drilling.
We assume that the remaining 56 entities that did not have revenue data are very small businesses. We assume that the interim rule may have a significant economic impact on these businesses.
We estimated that 1,683 companies that own domestic vessels will be affected by the interim rule. We researched these companies and found revenue data for 822 of them (49 percent). The revenue impacts for these vessels are presented in Table 4. As with U.S. flag SOLAS vessels, we considered the impacts to small businesses during the first year of implementation, when companies will be conducting assessments, developing security plans, and purchasing equipment. We also considered annual revenue impacts following the first year, when companies will have the assessments and plans complete, but will need to conduct quarterly drilling.
We assumed that the remaining 861 entities that did not have revenue data are very small businesses. We assumed that the interim rule may have a significant economic impact on these businesses.
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 interim rule so that they can better evaluate its effects on them and participate in the rulemaking. If the interim rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Lieutenant Kevin Oditt (G-MP), U.S. Coast Guard by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or electronic mail
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 interim rule calls for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other, similar actions. The title and description of the information collections, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.
This interim rule modifies two existing OMB-approved collections—1625-0077 [formerly 2115-0622] and
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this interim rule to the Office of Management and Budget (OMB) for its review of the collection of information. Due to the circumstances surrounding this temporary rule, we asked for “emergency processing” of our request. We received OMB approval for these collections of information on June 16, 2003. They are valid until December 31, 2003.
We ask for public comment on the collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.
If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under
You need not respond to a collection of information unless it displays a currently valid control number from OMB. We received OMB approval for these collections of information on June 16, 2003. They are valid until December 31, 2003.
An interim rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. See the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. This interim rule is exempted from assessing the effects of the regulatory action as required by the Act because it is necessary for the national security of the U.S. (2 U.S.C. 1503(5)).
This interim rule will 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 interim 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 interim rule under Executive Order 13045,
This interim 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 tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this interim 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. Although it is a “significant regulatory action” under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This interim rule has a positive effect on the supply, distribution, and use of energy. The interim rule provides for security assessments, plans, procedures, and standards, which will prove beneficial for the supply, distribution, and use of energy at increased levels of maritime security.
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the U.S. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The Act also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We have assessed the potential effect of this interim rule and have determined that it would likely create obstacles to the foreign commerce of the U.S. However, because these regulations are being put in place in order to further a legitimate domestic objective, namely to increase the security of the U.S., any obstacles created by the regulation are not considered unnecessary obstacles.
We have considered the environmental impact of this interim rule and concluded that under figure 2-1, paragraph (34)(a), (34)(c) and (34)(d), of Commandant Instruction M16475.lD, this interim rule is categorically excluded from further environmental documentation. This interim rule concerns security assessments, plans, training, and the establishment of security positions that will contribute to a higher level of marine safety and security for vessels and U.S. ports. A “Categorical Exclusion Determination” is available in the docket where indicated under
This rulemaking will not significantly impact the coastal zone. Further, the rulemaking and the execution of this interim rule will be done in conjunction with appropriate state coastal authorities. The Coast Guard will, therefore, comply with the requirements of the Coastal Zone Management Act while furthering its intent to protect the coastal zone.
Incorporation by reference, Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels.
Administrative practice and procedure, Harbors, Hazardous material transportation, Marine safety, Navigation (water), Reporting and recordkeeping requirement, Vessels, Waterways.
Marine safety, Maritime security, Reporting and recordkeeping requirements, Vessels.
Cargo vessels, Inspection and certification, Maritime security.
Inspection and certification, Maritime security, Passenger vessels.
Cargo vessels, Inspection and Certification, Maritime security.
Fire prevention, Inspection and certification, Marine safety, Maritime security, Reporting and recordkeeping requirements, Vessels.
Cargo vessels, Inspection and certification, Marine safety, Maritime security, Reporting and recordkeeping requirements.
Fire prevention, Inspection, Marine safety, Maritime security, Reporting and recordkeeping requirements, Vessels.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.
Except as specifically stated in this subpart, the definitions in part 101 of this subchapter apply to this part.
(a) This part applies to the owner or operator of any:
(1) Mobile Offshore Drilling Unit (MODU), cargo, or passenger vessel subject to the International Convention for Safety of Life at Sea, 1974, (SOLAS);
(2) Foreign commercial vessel greater than 100 gross register tons not subject to SOLAS;
(3) Commercial vessel greater than 100 gross register tons subject to 46 CFR subchapter I, except commercial fishing vessels inspected under 46 CFR part 105;
(4) Vessel subject to 46 CFR subchapter L;
(5) Passenger vessel subject to 46 CFR subchapters H or K;
(6) Other passenger vessel carrying more than 12 passengers that is engaged on an international voyage;
(7) Barge subject to 46 CFR subchapters D or O;
(8) Barge subject to 46 CFR subchapter I that carries Certain Dangerous Cargoes in bulk, or that is engaged on an international voyage;
(9) Tankship subject to 46 CFR subchapters D or O; and
(10) Towing vessel greater than 8 meters in registered length that is engaged in towing a barge or barges subject to this part.
(b) An owner or operator of any vessel not covered in paragraph (a) of this section is subject to parts 101 through 103 of this subchapter.
(c) Foreign vessels that have on board a valid International Ship Security Certificate (ISSC) that attests to the vessel's compliance with SOLAS Chapter XI-2 and the ISPS Code, part A (Incorporated by reference, see § 101.115 of this chapter), and having taken into account the relevant provisions in the ISPS Code, part B, will be deemed to be in compliance with this part, except for §§ 104.240, 104.255, 104.292, and 104.295 as appropriate.
(d) Except pursuant to international treaty, convention, or agreement to which the U.S. is a party, this part does not apply to any foreign vessel that is not destined for, or departing from, a port or place subject to the jurisdiction of the U.S. and that is in:
(1) Innocent passage through the territorial sea of the U.S.; or
(2) Transit through the navigable waters of the U.S. that form a part of an international strait.
This part does not apply to warships, naval auxiliaries or other vessels owned or operated by a government and used only on government non-commercial service.
(a) On or before December 29, 2003, each vessel owner or operator must submit to the Commanding Officer, Marine Safety Center for each vessel the Vessel Security Plan described in subpart D of this part for review and approval.
(b) On or before June 30, 2004, each vessel must be operating in compliance with this part.
(c) On or before July 1, 2004, foreign vessels must carry on board a valid International Ship Security Certificate that certifies that the verifications required by Section 19.1 of part A of the ISPS Code (Incorporated by reference, see § 101.115 of this chapter) have been completed, that the vessel meets the applicable requirements of SOLAS Chapter XI-2 (Incorporated by reference, see § 101.115 of this chapter) and the ISPS Code, part A, and that the vessel is provided with an approved security plan.
(a) Each vessel owner or operator subject to this part must ensure, no later than 1 July 2004, that copies of the following documents are carried on board the vessel and are made available to the Coast Guard upon request:
(1) The approved Vessel Security Plan (VSP) and any approved revisions or amendments thereto, and a letter of approval from the Commanding Officer, Marine Safety Center (MSC);
(2) The VSP submitted for approval and a current acknowledgement letter from the Commanding Officer, MSC, stating that the Coast Guard is currently reviewing the VSP submitted for approval, and that the vessel may continue to operate so long as the vessel remains in compliance with the submitted plan;
(3) For vessels operating under a Coast Guard-approved Alternative Security Program as provided in § 104.140, a copy of the Alternative Security Program the vessel is using and a letter signed by the vessel owner or operator, stating which Alternative Security Program the vessel is using and certifying that the vessel is in full compliance with that program; or
(4) For foreign vessels, a valid International Ship Security Certificate that attests to the vessel's compliance with SOLAS Chapter XI-2 and the ISPS Code, part A (Incorporated by reference, see § 101.115 of this subchapter), and having taken into account the relevant provisions in the ISPS Code, part B.
(b) Each owner or operator of an unmanned vessel subject to this part must maintain the documentation described in paragraphs (a)(1), (2), or (3) of this section. The letter required by each of those paragraphs must be carried on board the vessel. The plan or program required by each of those paragraphs must not be carried on board the vessel, but must be maintained in a secure location. During scheduled inspections, the plan or program must be made available to the Coast Guard upon request.
When a vessel is not in compliance with the requirements of this part, the vessel owner or operator must notify the cognizant COTP and request a waiver to continue operations.
Any vessel owner or operator may apply for a waiver of any requirement of this part that the owner or operator considers unnecessary in light of the nature or operating conditions of the vessel. A request for a waiver must be submitted in writing with justification to the Commandant (G-MP) at 2100 Second St., SW., Washington, DC 20593. The Commandant (G-MP) may require the vessel owner or operator to provide additional data for determining the validity of the requested waiver. The Commandant (G-MP) may grant, in writing, a waiver with or without conditions only if the waiver will not reduce the overall security of the vessel, its passengers, its crew, or its cargo, or facilities or ports that the vessel may visit.
For any measure required by this part, the vessel owner or operator may
A vessel owner or operator may use an Alternative Security Program as approved under § 101.120 of this subchapter if:
(a) The Alternative Security Program is appropriate to that class of vessel;
(b) The vessel does not engage on international voyages; and
(c) The Alternative Security Program is implemented in its entirety.
Each vessel owner or operator subject to this part must comply with any instructions contained in a MARSEC Directive issued under § 101.405 of this subchapter.
Any person directly affected by a decision or action taken under this part, by or on behalf of the Coast Guard, may appeal as described in § 101.420 of this subchapter.
(a) Each vessel owner or operator must ensure that the vessel operates in compliance with the requirements of this part.
(b) For each vessel, the vessel owner or operator must:
(1) Define the security organizational structure for each vessel and provide all personnel exercising security duties or responsibilities within that structure with the support needed to fulfill security obligations;
(2) Designate, in writing, by name or title, a Company Security Officer (CSO), a Vessel Security Officer (VSO) for each vessel, and identify how those officers can be contacted at any time;
(3) Ensure personnel receive training, drills, and exercises enabling them to perform their assigned security duties;
(4) Ensure vessel security records are kept;
(5) Ensure that adequate coordination of security issues takes place between vessels and facilities; this includes the execution of a Declaration of Security (DoS);
(6) Ensure coordination of shore leave for vessel personnel or crew change-out, as well as access through the facility of visitors to the vessel (including representatives of seafarers' welfare and labor organizations), with facility operators in advance of a vessel's arrival;
(7) Ensure security communication is readily available;
(8) Ensure coordination with and implementation of changes in Maritime Security (MARSEC) Level;
(9) Ensure that security systems and equipment are installed and maintained;
(10) Ensure that vessel access, including the embarkation of persons and their effects, are controlled;
(11) Ensure that restricted areas are controlled;
(12) Ensure that cargo and vessel stores and bunkers are handled in compliance with this part;
(13) Ensure restricted areas, deck areas, and areas surrounding the vessel are monitored;
(14) Provide the Master, or for vessels on domestic routes only, the CSO, with the following information:
(i) Parties responsible for appointing vessel personnel, such as vessel management companies, manning agents, contractor, concessionaires (for example, retail sales outlets, casinos, etc.);
(ii) Parties responsible for deciding the employment of the vessel, including time or bareboat charters or any other entity acting in such capacity; and
(iii) In cases when the vessel is employed under the terms of a charter party, the contract details of those documents, including time or voyage charters; and
(15) Give particular consideration to the convenience, comfort, and personal privacy of vessel personnel and their ability to maintain their effectiveness over long periods.
(a) Nothing in this part is intended to permit the Master to be constrained by the Company, the vessel owner or operator, or any other person, from taking or executing any decision which, in the professional judgment of the Master, is necessary to maintain the safety and security of the vessel. This includes denial of access to persons—except those identified as duly authorized by the cognizant government authority—or their effects, and refusal to load cargo, including containers or other closed cargo transport units.
(b) If, in the professional judgment of the Master, a conflict between any safety and security requirements applicable to the vessel arises during its operations, the Master may give precedence to measures intended to maintain the safety of the vessel, and take such temporary security measures as seem best under all circumstances. In such cases:
(1) The Master must, as soon as practicable, inform the nearest COTP. If the vessel is on a foreign voyage, the Master must promptly inform the Coast Guard at 1-800-424-8802, direct telephone at 202-267-2675, fax at 202-267-2165, TDD at 202-267-4477, or E-mail at
(2) The temporary security measures must, to the highest possible degree, be commensurate with the prevailing Maritime Security (MARSEC) Level; and
(3) The owner or operator must ensure that such conflicts are resolved to the satisfaction of the cognizant COTP, or for vessels on international voyages, the Commandant (G-MP), and that the possibility of recurrence is minimized.
(a)
(2) A vessel owner or operator may designate a single CSO for all its vessels to which this part applies, or may designate more than one CSO, in which case the owner or operator must clearly identify the vessels for which each CSO is responsible.
(3) A CSO may perform other duties within the owner or operator's organization, provided he or she is able to perform the duties and responsibilities required of a CSO.
(4) The CSO may delegate duties required by this part, but remains responsible for the performance of those duties.
(b)
(i) Security administration and organization of the company's vessel(s);
(ii) Vessel, facility, and port operations relevant to that industry;
(iii) Vessel and facility security measures, including the meaning and the consequential requirements of the different Maritime Security (MARSEC) Levels;
(iv) Emergency preparedness and response and contingency planning;
(v) Security equipment and systems and their operational limitations;
(vi) Methods of conducting audits, inspection and control and monitoring techniques; and
(vii) Techniques for security training and education, including security measures and procedures.
(2) In addition to knowledge and training in paragraph (b)(1) of this section, the CSO must have general knowledge through training or equivalent job experience in the following, as appropriate:
(i) Relevant international conventions, codes, and recommendations;
(ii) Relevant government legislation and regulations;
(iii) Responsibilities and functions of other security organizations;
(iv) Methodology of Vessel Security Assessment;
(v) Methods of vessel security surveys and inspections;
(vi) Instruction techniques for security training and education, including security measures and procedures;
(vii) Handling sensitive security information and security related communications;
(viii) Knowledge of current security threats and patterns;
(ix) Recognition and detection of dangerous substances and devices;
(x) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(xi) Techniques used to circumvent security measures;
(xii) Methods of physical screening and non-intrusive inspections;
(xiii) Security drills and exercises, including drills and exercises with facilities; and
(xiv) Assessment of security drills and exercises.
(c)
(1) Keep the vessel apprised of potential threats or other information relevant to its security;
(2) Ensure a Vessel Security Assessment (VSA) is carried out;
(3) Ensure a Vessel Security Plan (VSP) is developed, approved, and maintained;
(4) Ensure the VSP is modified when necessary;
(5) Ensure vessel security activities are audited;
(6) Arrange for Coast Guard inspections under 46 CFR part 2;
(7) Ensure the timely or prompt correction of problems identified by audits or inspections;
(8) Enhance security awareness and vigilance within the owner's or operator's organization;
(9) Ensure relevant personnel receive adequate security training;
(10) Ensure communication and cooperation between the vessel and the port and facilities with which the vessel interfaces;
(11) Ensure consistency between security requirements and safety requirements;
(12) Ensure that when sister-vessel or fleet security plans are used, the plan for each vessel reflects the vessel-specific information accurately;
(13) Ensure compliance with an Alternative Security Program or equivalents approved under this subchapter, if appropriate; and
(14) Ensure security measures give particular consideration to the convenience, comfort, and personal privacy of vessel personnel and their ability to maintain their effectiveness over long periods.
(a)
(2) For manned vessels, the VSO must be a member of the crew.
(3) For unmanned vessels, the same person may serve as the VSO for more one than one unmanned vessel. If a person serves as the VSO for more than one unmanned vessel, the name of each unmanned vessel for which he or she is the VSO must be listed in the Vessel Security Plan (VSP).
(4) The VSO of any unmanned barge and the VSO of any towing vessel interfacing with the barge must coordinate and ensure the implementation of security measures applicable to both vessels during the period of their interface.
(5) The VSO may assign security duties to other vessel personnel; however, the VSO remains responsible for these duties.
(b)
(1) Those items listed in § 104.210 (b)(1) and (b)(2) of this part;
(2) Vessel layout;
(3) The VSP and related procedures, including scenario-based response training;
(4) Crowd management and control techniques;
(5) Operations of security equipment and systems; and
(6) Testing and calibration of security equipment and systems, and their maintenance while at sea.
(c)
(1) Regularly inspect the vessel to ensure that security measures are maintained;
(2) Ensure maintenance and supervision of the implementation of the VSP, and any amendments to the VSP;
(3) Ensure the coordination and handling of cargo and vessel stores and bunkers in compliance with this part;
(4) Propose modifications to the VSP to the Company Security Officer (CSO);
(5) Ensure that any problems identified during audits or inspections are reported to the CSO, and promptly implement any corrective actions;
(6) Ensure security awareness and vigilance on board the vessel;
(7) Ensure adequate security training for vessel personnel;
(8) Ensure the reporting and recording of all security incidents;
(9) Ensure the coordinated implementation of the VSP with the CSO and the relevant Facility Security Officer, when applicable;
(10) Ensure security equipment is properly operated, tested, calibrated and maintained; and
(11) Ensure consistency between security requirements and the proper treatment of vessel personnel affected by those requirements.
Company and vessel personnel responsible for security duties must have knowledge, through training or equivalent job experience, in the following, as appropriate:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(d) Techniques used to circumvent security measures;
(e) Crowd management and control techniques;
(f) Security related communications;
(g) Knowledge of emergency procedures and contingency plans;
(h) Operation of security equipment and systems;
(i) Testing and calibration of security equipment and systems, and their maintenance while at sea;
(j) Inspection, control, and monitoring techniques;
(k) Relevant provisions of the Vessel Security Plan (VSP);
(l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores; and
(m) The meaning and the consequential requirements of the different Maritime Security (MARSEC) Levels.
All other vessel personnel, including contractors, whether part-time, full-time, temporary, or permanent, must have knowledge of, through training or equivalent job experience in the following:
(a) Relevant provisions of the Vessel Security Plan (VSP);
(b) The meaning and the consequential requirements of the different Maritime Security (MARSEC) Levels, including emergency procedures and contingency plans;
(c) Recognition and detection of dangerous substances and devices;
(d) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security; and
(e) Techniques used to circumvent security measures.
(a)
(b)
(2) Drills must test individual elements of the VSP, including response to security threats and incidents. Drills should take into account the types of operations of the vessel, vessel personnel changes, and other relevant circumstances. Examples of drills include unauthorized entry to a restricted area, response to alarms, and notification of law enforcement authorities.
(3) If the vessel is moored at a facility on the date the facility has planned to conduct any drills, the vessel may, but is not required to, participate in the facility's scheduled drill.
(4) Drills must be conducted within one week whenever the percentage of vessel personnel with no prior participation in a vessel security drill on that vessel exceeds 25 percent.
(c)
(2) Exercises may be:
(i) Full scale or live;
(ii) Tabletop simulation or seminar;
(iii) Combined with other appropriate exercises; or
(iv) A combination of the elements in paragraphs (c)(2)(i) through (iii) of this section.
(3) Exercises may be vessel-specific or part of a cooperative exercise program to exercise applicable facility and vessel security plans or comprehensive port exercises.
(4) Each exercise must test communication and notification procedures, and elements of coordination, resource availability, and response.
(5) Exercises are a full test of the security program and must include the substantial and active participation of relevant company and vessel security personnel, and may include facility security personnel and government authorities depending on the scope and the nature of the exercises.
(a) Unless otherwise specified in this section, the Vessel Security Officer must keep records of the activities as set out in paragraph (b) of this section for at least 2 years and make them available to the Coast Guard upon request.
(b) Records required by this section may be kept in electronic format. If kept in an electronic format, they must be protected against unauthorized deletion, destruction, or amendment. The following records must be kept:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c) Any records required by this part must be protected from unauthorized access or disclosure.
(a) The vessel owner or operator must ensure that, prior to entering a port, all measures are taken that are specified in the Vessel Security Plan (VSP) for compliance with the MARSEC Level in effect for the port.
(b) When notified of an increase in the MARSEC Level, the vessel owner or operator must ensure:
(1) If a higher MARSEC Level is set for the port in which the vessel is located or is about to enter, the vessel complies, without undue delay, with all measures specified in the VSP for compliance with that higher MARSEC Level;
(2) The COTP is notified as required by § 101.300(c) when compliance with the higher MARSEC Level has been implemented; and
(3) For vessels in port, that compliance with the higher MARSEC Level has taken place within 12 hours of the notification.
(c) For MARSEC Levels 2 and 3, the Vessel Security Officer must brief all vessel personnel of identified threats, emphasize reporting procedures, and stress the need for increased vigilance.
(d) An owner or operator whose vessel is not in compliance with the requirements of this section must inform the COTP and obtain approval prior to entering any port, prior to interfacing with another vessel or with a facility or to continuing operations.
(e) For MARSEC Level 3, in addition to the requirements in this part, a vessel owner or operator may be required to implement additional measures, pursuant to 33 CFR part 6, 160 or 165, as appropriate, which may include but are not limited to:
(1) Arrangements to ensure that the vessel can be towed or moved if deemed necessary by the Coast Guard;
(2) Use of waterborne security patrol;
(3) Use of armed security personnel to control access to the vessel and to deter, to the maximum extent practical, a TSI; or
(4) Screening the vessel for the presence of dangerous substances and devices underwater or other threats.
(a) The Vessel Security Officer must have a means to effectively notify vessel
(b) Communications systems and procedures must allow effective and continuous communication between the vessel security personnel, facilities interfacing with the vessel, vessels interfacing with the vessel, and national or local authorities with security responsibilities.
(c) Communication systems and procedures must enable vessel personnel to notify, in a timely manner, shore side authorities or other vessels of a security threat or incident on board.
(a) The vessel owner or operator must ensure that there are measures for interfacing with facilities and other vessels at all MARSEC Levels.
(b) For each U.S. flag vessel that calls on foreign ports or facilities, the vessel owner or operator must ensure procedures for interfacing with those ports and facilities are established.
(a) Each vessel owner or operator must ensure procedures are established for requesting a DoS and for handling DoS requests from a facility or other vessel.
(b) At MARSEC Level 1, the Master or Vessel Security Officer (VSO), or their designated representative, of any cruise ship or manned vessel carrying Certain Dangerous Cargoes, in bulk, must complete and sign a DoS with the VSO or Facility Security Officer (FSO), or their designated representative, of any vessel or facility with which it interfaces.
(1) For a vessel-to-facility interface, prior to arrival of a vessel to a facility, the FSO and Master, VSO, or their designated representatives must coordinate security needs and procedures, and agree upon the contents of the DoS for the period of time the vessel is at the facility. Upon a vessel's arrival to a facility and prior to any passenger embarkation or disembarkation or cargo transfer operation, the FSO or Master, VSO, or designated representatives must sign the written DoS.
(2) For a vessel engaging in a vessel-to-vessel interface, prior to the interface, the respective Masters, VSOs, or their designated representatives must coordinate security needs and procedures, and agree upon the contents of the DoS for the period of time the vessel is at the facility. Upon the vessel-to-vessel interface and prior to any passenger embarkation or disembarkation or cargo transfer operation, the respective Masters, VSOs, or designated representatives must sign the written DoS.
(c) At MARSEC Levels 2 and 3, the Master, VSO, or designated representative of any vessel required to comply with this part must sign and implement a DoS prior to any vessel-to-vessel interface.
(d) At MARSEC Levels 2 and 3, the Master, VSO, or designated representative of any vessel required to comply with this part must sign and implement a DoS with the FSO of any facility on which it calls prior to any cargo transfer operation or passenger embarkation or disembarkation.
(e) At MARSEC Levels 1 and 2, VSOs of vessels that frequently interface with the same facility may implement a continuing DoS for multiple visits, provided that:
(1) The DoS is valid for the specific MARSEC Level;
(2) The effective period at MARSEC Level 1 does not exceed 90 days; and
(3) The effective period at MARSEC Level 2 does not exceed 30 days.
(f) When the MARSEC Level increases beyond the level contained in the DoS, the continuing DoS becomes void and a new DoS must be signed and implemented in accordance with this section.
(g) The COTP may require at any time, at any MARSEC Level, any manned vessel subject to this part to implement a DoS with the VSO or FSO prior to any vessel-to-vessel or vessel-to-facility interface when he or she deems it necessary.
(a) Security systems and equipment must be in good working order and inspected, tested, calibrated and maintained according to the manufacturer's recommendation.
(b) The results of testing completed under paragraph (a) of this section shall be recorded in accordance with § 104.235. Any deficiencies shall be promptly corrected.
(c) The Vessel Security Plan (VSP) must include procedures for identifying and responding to security system and equipment failures or malfunctions.
(a)
(1) Deter the unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports;
(2) Secure dangerous substances and devices that are authorized by the owner or operator to be on board; and
(3) Control access to the vessel.
(b) The vessel owner or operator must ensure that:
(1) The locations providing means of access to the vessel where access restrictions or prohibitions are applied for each Maritime Security (MARSEC) Level to prevent unauthorized access. “Means of access” include, but are not limited, to all:
(i) Access ladders;
(ii) Access gangways;
(iii) Access ramps;
(iv) Access doors, side scuttles, windows, and ports;
(v) Mooring lines and anchor chains; and
(vi) Cranes and hoisting gear;
(2) The identification of the types of restriction or prohibition to be applied and the means of enforcing them; and
(3) The means of identification required to allow individuals to access the vessel and remain on the vessel without challenge are established.
(c) The vessel owner or operator must ensure that an identification system is established for checking the identification of vessel personnel or other persons seeking access to the vessel that:
(1) Allows identification of authorized and unauthorized persons at any MARSEC Level;
(2) Is coordinated, when practicable, with identification systems at facilities used by the vessel;
(3) Is updated regularly;
(4) Uses disciplinary measures to discourage abuse;
(5) Allows temporary or continuing access for vessel personnel and visitors, including seafarer's chaplains and union representatives, through the use of a badge or other system to verify their identity; and
(6) Allow certain long-term, frequent vendor representatives to be treated more as employees than as visitors.
(d) The vessel owner or operator must establish in the approved Vessel Security Plan (VSP) the frequency of application of any security measures for access control, particularly if these security measures are applied on a random or occasional basis.
(e)
(1) Screen persons, baggage (including carry-on items), personal effects, and vehicles for dangerous substances and devices at the rate specified in the approved Vessels Security Plan (VSP);
(2) Conspicuously post signs that describe security measures currently in effect and clearly state that:
(i) Boarding the vessel is deemed valid consent to screening or inspection; and
(ii) Failure to consent or submit to screening or inspection will result in denial or revocation of authorization to board;
(3) Check the identification of any person seeking to board the vessel, including vessel passengers and crew, facility employees, vendors, personnel duly authorized by the cognizant government authorities, and visitors. This check includes confirming the reason for boarding by examining at least one of the following:
(i) Joining instructions;
(ii) Passenger tickets;
(iii) Boarding passes;
(iv) Work orders, pilot orders, or surveyor orders;
(v) Government identification; or
(vi) Visitor badges issued in accordance with an identification system required in paragraph (c) of this section;
(4) Deny or revoke a person's authorization to be on board if the person is unable or unwilling, upon the request of vessel personnel, to establish his or her identity or to account for his or her presence on board. Any such incident must be reported in compliance with this part;
(5) Deter unauthorized access to the vessel;
(6) Identify access points that must be secured or attended to deter unauthorized access;
(7) Lock or otherwise prevent access to unattended spaces that adjoin areas to which passengers and visitors have access;
(8) Provide a designated secure area on board or in liaison with a facility, for conducting inspections and screening of people, baggage (including carry-on items), personal effects, vehicles and the vehicle's contents;
(9) Ensure vessel personnel are not required to engage in or be subjected to screening, of the person or of personal effects, by other vessel personnel, unless security clearly requires it. Any such screening must be conducted in a way that takes into full account individual human rights and preserves the individual's basic human dignity;
(10) Ensure the screening of all unaccompanied baggage;
(11) Ensure checked persons and their personal effects are segregated from unchecked persons and their personal effects;
(12) Ensure embarking passengers are segregated from disembarking passengers;
(13) Ensure, in liaison with the facility, a defined percentage of vehicles to be loaded aboard passenger vessels are screened prior to loading at the rate specified in the approved VSP;
(14) Ensure, in liaison with the facility, all unaccompanied vehicles to be loaded on passenger vessels are screened prior to loading; and
(15) Respond to the presence of unauthorized persons on board, including repelling unauthorized boarders.
(f)
(1) Increasing the frequency and detail of screening of people, personal effects, and vehicles being embarked or loaded onto the vessel as specified for MARSEC Level 2 in the approved VSP;
(2) X-ray screening of all unaccompanied baggage;
(3) Assigning additional personnel to patrol deck areas during periods of reduced vessel operations to deter unauthorized access;
(4) Limiting the number of access points to the vessel by closing and securing some access points;
(5) Denying access to visitors who do not have a verified destination;
(6) Deterring waterside access to the vessel, which may include, in liaison with the facility, providing boat patrols; and
(7) Establishing a restricted area on the shoreside of the vessel, in close cooperation with the facility.
(g)
(1) Screening all persons, baggage, and personal effects for dangerous substances and devices;
(2) Performing one or more of the following on unaccompanied baggage:
(i) Screen unaccompanied baggage more extensively, for example, x-raying from two or more angles;
(ii) Prepare to restrict or suspend handling unaccompanied baggage; or
(iii) Refuse to accept unaccompanied baggage on board;
(3) Being prepared to cooperate with responders and facilities;
(4) Limiting access to the vessel to a single, controlled access point;
(5) Granting access to only those responding to the security incident or threat thereof;
(6) Suspending embarkation and/or disembarkation of personnel;
(7) Suspending cargo operations;
(8) Evacuating the vessel;
(9) Moving the vessel; and
(10) Preparing for a full or partial search of the vessel.
(a)
(1) Prevent or deter unauthorized access;
(2) Protect persons authorized to be on board;
(3) Protect the vessel;
(4) Protect sensitive security areas within the vessel;
(5) Protect security and surveillance equipment and systems; and
(6) Protect cargo and vessel stores from tampering.
(b)
(1) Navigation bridge, machinery spaces and other control stations;
(2) Spaces containing security and surveillance equipment and systems and their controls and lighting system controls;
(3) Ventilation and air-conditioning systems and other similar spaces;
(4) Spaces with access to potable water tanks, pumps, or manifolds;
(5) Spaces containing dangerous goods or hazardous substances;
(6) Spaces containing cargo pumps and their controls;
(7) Cargo spaces and spaces containing vessel stores;
(8) Crew accommodations; and
(9) Any other spaces or areas vital to the security of the vessel.
(c) The vessel owner or operator must ensure that security measures and policies are established to:
(1) Identify which vessel personnel are authorized to have access;
(2) Determine which persons other than vessel personnel are authorized to have access;
(3) Determine the conditions under which that access may take place;
(4) Define the extent of any restricted area;
(5) Define the times when access restrictions apply; and
(6) Clearly mark all restricted areas and indicate that access to the area is restricted and that unauthorized
(d)
(1) Locking or securing access points;
(2) Monitoring and using surveillance equipment;
(3) Using guards or patrols; and
(4) Using automatic intrusion detection devices, which if used must activate an audible and/or visual alarm at a location that is continuously attended or monitored, to alert vessel personnel to unauthorized access.
(e)
(1) Increasing the frequency and intensity of monitoring and access controls on existing restricted access areas;
(2) Restricting access to areas adjacent to access points;
(3) Providing continuous monitoring of each area, using surveillance equipment; and
(4) Dedicating additional personnel to guard or patrol each area.
(f)
(1) Restricting access to additional areas; and
(2) Searching restricted areas as part of a security sweep of the vessel.
(a)
(1) Deter tampering;
(2) Prevent cargo that is not meant for carriage from being accepted and stored on board the vessel;
(3) Identify cargo that is approved for loading onto the vessel;
(4) Include inventory control procedures at access points to the vessel;
(5) Coordinate security measures with the shipper or other responsible party in accordance with an established agreement and procedures; and
(6) Be able to check cargo for dangerous substances and devices at the rate specified in the approved Vessel Security Plan. Means to check cargo include:
(i) Visual examination;
(ii) Physical examination;
(iii) Detection devices such as scanners; or
(iv) Canines.
(b)
(1) Routinely check cargo and cargo spaces prior to and during cargo handling;
(2) Check that cargo to be loaded matches the cargo documentation, or that cargo markings or container numbers match the information provided with shipping documents;
(3) Ensure, in liaison with the facility, that vehicles to be loaded on board car carriers, RO-RO, and passenger ships are subjected to screening prior to loading, in accordance with the frequency required in the VSP; and
(4) Check, in liaison with the facility, seals or other methods used to prevent tampering.
(c)
(1) Increasing the frequency and detail of checking cargo and cargo spaces;
(2) Intensifying checks to ensure that only the intended cargo, container, or other cargo transport units are loaded;
(3) Intensifying screening of vehicles to be loaded on car-carriers, RO-RO, and passenger vessels;
(4) In liaison with the facility, increasing frequency and detail in checking seals or other methods used to prevent tampering;
(5) Increasing the frequency of the use of scanning/detection equipment, mechanical devices, or canines; or
(6) Coordinating enhanced security measures with the shipper or other responsible party in accordance with an established agreement and procedures.
(d)
(1) Suspending loading or unloading of cargo;
(2) Being prepared to cooperate with responders and facilities; or
(3) Verifying the inventory and location of any hazardous materials carried on board.
(a)
(1) Check vessel stores for package integrity;
(2) Prevent vessel stores from being accepted without inspection;
(3) Deter tampering; and
(4) Prevent vessel stores and bunkers from being accepted unless ordered. For vessels that routinely use a facility, a vessel owner or operator may establish and implement standing arrangements between the vessel, its suppliers, and a facility regarding notification and the timing of deliveries and their documentation.
(b)
(1) Check vessel stores before being accepted;
(2) Check that vessel stores and bunkers match the order prior to being brought on board or being bunkered; and
(3) Ensure that vessel stores are controlled or immediately and securely stowed following delivery.
(c)
(1) Intensifying inspection of the vessel stores during delivery; or
(2) Checking vessel stores prior to receiving them on board.
(d)
(1) Checking all vessel stores more extensively;
(2) Restricting or suspending delivery of vessel stores and bunkers; or
(3) Refusing to accept vessel stores on board.
(a)
(i) Vessel;
(ii) Restricted areas on board the vessel; and
(iii) Area surrounding the vessel.
(2) The following must be considered when establishing the appropriate level and location of lighting:
(i) Vessel personnel should be able to detect activities on and around the vessel, on both the shore side and the waterside;
(ii) Coverage should facilitate personnel identification at access points;
(iii) Coverage may be provided through coordination with the port or facility; and
(iv) Lighting effects, such as glare, and its impact on safety, navigation, and other security activities.
(b)
(1) Monitor the vessel, particularly vessel access points and restricted areas;
(2) Be able to conduct emergency searches of the vessel;
(3) Ensure that equipment or system failures or malfunctions are identified and corrected;
(4) Ensure that any automatic intrusion detection device sets off an audible or visual alarm, or both, at a location that is continually attended or monitored;
(5) Light deck and vessel access points during the period between sunset and sunrise and periods of limited visibility sufficiently to allow visual identification of persons seeking access to the vessel; and
(6) Use maximum available lighting while underway, during the period between sunset and sunrise, consistent with safety and international regulations.
(c)
(1) Increasing the frequency and detail of security patrols;
(2) Increasing the coverage and intensity of lighting, alone or in coordination with the facility;
(3) Using or increasing the use of security and surveillance equipment;
(4) Assigning additional personnel as security lookouts;
(5) Coordinating with boat patrols, when provided; or
(6) Coordinating with shoreside foot or vehicle patrols, when provided.
(d)
(1) Cooperating with responders and facilities;
(2) Switching on all lights;
(3) Illuminating the vicinity of the vessel;
(4) Switching on all surveillance equipment capable of recording activities on, or in the vicinity of, the vessel;
(5) Maximizing the length of time such surveillance equipment can continue to record;
(6) Preparing for underwater inspection of the hull; and
(7) Initiating measures, including the slow revolution of the vessel's propellers, if practicable, to deter underwater access to the hull of the vessel.
For each Maritime Security (MARSEC) Level, the vessel owner or operator must ensure the Vessel Security Officer (VSO) and vessel security personnel are able to:
(a) Respond to security threats or breaches of security and maintain critical vessel and vessel-to-facility interface operations, to include:
(1) Prohibiting entry into affected area;
(2) Denying access to the vessel, except to those responding to the emergency;
(3) Implementing MARSEC Level 3 security measures throughout the vessel;
(4) Stopping cargo-handling operations; and
(5) Notifying shoreside authorities or other vessels of the emergency;
(b) Evacuating the vessel in case of security threats or breaches of security;
(c) Reporting security incidents as required in § 101.305;
(d) Briefing all vessel personnel on possible threats and the need for vigilance, soliciting their assistance in reporting suspicious persons, objects, or activities; and
(e) Securing non-critical operations in order to focus response on critical operations.
(a) At all Maritime Security (MARSEC) Levels, the vessel owner or operator must ensure security sweeps are performed, prior to getting underway, after any period the vessel was unattended.
(b) As an alternative to the identification checks and passenger screening requirements in § 104.265 (e)(1), (e)(3), and (e)(8), the owner or operator of a passenger vessel or ferry may ensure security measures are implemented that include:
(1) Searching selected areas prior to embarking passengers and prior to sailing; and
(2) Implementing one or more of the following:
(i) Performing routine security patrols;
(ii) Providing additional closed-circuit television to monitor passenger areas; or
(iii) Securing all non-passenger areas.
(c) Passenger vessels certificated to carry more than 2000 passengers, working in coordination with the terminal, may be subject to additional vehicle screening requirements in accordance with a MARSEC Directive or other orders issued by the Coast Guard.
(d) At MARSEC Level 2, a vessel owner or operator must ensure, in addition to MARSEC Level 1 measures, the implementation of the following:
(1) Search selected areas prior to embarking passengers and prior to sailing;
(2) Passenger vessels certificated to carry less than 2000 passengers, working in coordination with the terminal, may be subject to additional vehicle screening requirements in accordance with a MARSEC Directive or other orders issued by the Coast Guard; and
(3) As an alternative to the identification and screening requirements in § 104.265(e)(3), intensify patrols, security sweeps and
(e) At MARSEC Level 3, a vessel owner or operator may, in addition to MARSEC Levels 1 and 2 measures, as an alternative to the identification checks and passenger screening requirements in § 104.265(e)(3), ensure that random armed security patrols are conducted, which need not consist of vessel personnel.
(a) At all MARSEC Levels, the owner or operator of a cruise ship must ensure the following:
(1) Screen all persons, baggage, and personal effects for dangerous substances and devices;
(2) Check the identification of all persons seeking to board the vessel; this check includes confirming the reason for boarding by examining joining instructions, passenger tickets, boarding passes, government identification or visitor badges, or work orders;
(3) Perform security patrols; and
(4) Search selected areas prior to embarking passengers and prior to sailing.
(b) At MARSEC Level 3, the owner or operator of a cruise ship must ensure that security briefs to passengers about the specific threat are provided.
(a) An owner or operator of a U.S. flag vessel, which is subject to the International Convention for Safety of Life at Sea, 1974, (SOLAS), must be in compliance with the applicable requirements of SOLAS Chapter XI-1, SOLAS Chapter XI-2 and the ISPS Code, part A (Incorporated by reference, see § 101.115 of this subchapter).
(b) Owners or operators of U.S. flag vessels that are required to comply with SOLAS, must ensure an International Ship Security Certificate (ISSC) as provided in 46 CFR § 2.01-25 is obtained for the vessel. This certificate must be issued by the Coast Guard.
(c) Owners or operators of vessels that require an ISSC in paragraph (b) of this section must request an inspection in writing, at least 30 days prior to the desired inspection date to the Officer in Charge, Marine Inspection for the Marine Inspection Office or Marine Safety Office of the port where the vessel will be inspected to verify compliance with this part and applicable SOLAS requirements. The inspection must be completed and the initial ISSC must be issued prior to July 1, 2004.
(a) The Vessel Security Assessment (VSA) is a written document that is based on the collection of background information and the completion and analysis of an on-scene survey.
(b) A single VSA may be performed and applied to more than one vessel to the extent that they share physical characteristics and operations.
(c) Third parties may be used in any aspect of the VSA if they have the appropriate skills and if the Company Security Officer (CSO) reviews and accepts their work.
(d) Those involved in a VSA should be able to draw upon expert assistance in the following areas:
(1) Knowledge of current security threats and patterns;
(2) Recognition and detection of dangerous substances and devices;
(3) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(4) Techniques used to circumvent security measures;
(5) Methods used to cause a security incident;
(6) Effects of dangerous substances and devices on vessel structures and equipment;
(7) Vessel security requirements;
(8) Vessel-to-vessel and vessel-to-facility interface business practices;
(9) Contingency planning, emergency preparedness and response;
(10) Physical security requirements;
(11) Radio and telecommunications systems, including computer systems and networks;
(12) Marine engineering; and
(13) Vessel and port operations.
(a)
(1) General layout of the vessel, including the location of:
(i) Each actual or potential point of access to the vessel and its function;
(ii) Spaces that should have restricted access;
(iii) Essential maintenance equipment;
(iv) Cargo spaces and storage;
(v) Storage of unaccompanied baggage; and
(vi) Vessel stores;
(2) Threat assessments, including the purpose and methodology of the assessment, for the area or areas in which the vessel operates or at which passengers embark or disembark;
(3) The previous VSA, if any;
(4) Emergency and stand-by equipment available to maintain essential services;
(5) Number of vessel personnel and any existing security duties to which they are assigned;
(6) Existing personnel training requirement practices of the vessel;
(7) Existing security and safety equipment for the protection of personnel, visitors, passengers, and vessels personnel;
(8) Escape and evacuation routes and assembly stations that have to be maintained to ensure the orderly and safe emergency evacuation of the vessel;
(9) Existing agreements with private security companies providing waterside or vessel security services; and
(10) Existing security measures and procedures, including:
(i) Inspection and control procedures;
(ii) Identification systems;
(iii) Surveillance and monitoring equipment;
(iv) Personnel identification documents;
(v) Communication systems;
(vi) Alarms;
(vii) Lighting;
(viii) Access control systems; and
(ix) Other security systems.
(b)
(1) Ensuring performance of all security duties;
(2) Controlling access to the vessel, through the use of identification systems or otherwise;
(3) Controlling the embarkation of vessel personnel and other persons and their effects, including personal effects and baggage whether accompanied or unaccompanied;
(4) Supervising the handling of cargo and the delivery of vessel stores;
(5) Monitoring restricted areas to ensure that only authorized persons have access;
(6) Monitoring deck areas and areas surrounding the vessel; and
(7) The ready availability of security communications, information, and equipment.
(c)
(1) Restricted areas;
(2) Response procedures for fire or other emergency conditions;
(3) Security supervision of vessel personnel, passengers, visitors, vendors, repair technicians, dock workers, etc.;
(4) Frequency and effectiveness of security patrols;
(5) Access control systems, including identification systems;
(6) Security communication systems and procedures;
(7) Security doors, barriers, and lighting;
(8) Any security and surveillance equipment and systems;
(9) Possible security threats, including but not limited to:
(i) Damage to or destruction of the vessel or an interfacing facility or vessel by dangerous substances and devices, arson, sabotage, or vandalism;
(ii) Hijacking or seizure of the vessel or of persons on board;
(iii) Tampering with cargo, essential vessel equipment or systems, or vessel stores;
(iv) Unauthorized access or use, including presence of stowaways;
(v) Smuggling dangerous substances and devices;
(vi) Use of the vessel to carry those intending to cause a security incident and/or their equipment;
(vii) Use of the vessel itself as a weapon or as a means to cause damage or destruction;
(viii) Attacks from seaward while at berth or at anchor; and
(ix) Attacks while at sea; and
(10) Evaluating the potential of each identified point of access, including open weather decks, for use by individuals who might seek to breach security, whether or not those individuals legitimately have access to the vessel.
(d)
(i) A summary of how the on-scene survey was conducted;
(ii) Existing security measures, procedures, and operations;
(iii) A description of each vulnerability found during the assessment;
(iv) A description of security countermeasures that could be used to address each vulnerability;
(v) A list of the key vessel operations that are important to protect;
(vi) The likelihood of possible threats to key vessel operations; and
(vii) A list of identified weaknesses, including human factors, in the infrastructure, policies, and procedures of the vessel.
(2) The VSA report must address the following elements on board or within the vessel:
(i) Physical security;
(ii) Structural integrity;
(iii) Personnel protection systems;
(iv) Procedural policies;
(v) Radio and telecommunication systems, including computer systems and networks; and
(vi) Other areas that may, if damaged or used illicitly, pose a risk to people, property, or operations on board the vessel or within a facility.
(3) The VSA must list the persons, activities, services, and operations that are important to protect, in each of the following categories:
(i) Vessel personnel;
(ii) Passengers, visitors, vendors, repair technicians, facility personnel, etc.;
(iii) Capacity to maintain safe navigation and emergency response;
(iv) Cargo, particularly dangerous goods or hazardous substances;
(v) Vessel stores;
(vi) Any vessel security communication and surveillance systems; and
(vii) Any other vessel security systems, if any.
(4) The VSA must account for any vulnerabilities in the following areas:
(i) Conflicts between safety and security measures;
(ii) Conflicts between vessel duties and security assignments;
(iii) The impact of watch-keeping duties and risk of fatigue on vessel personnel alertness and performance;
(iv) Security training deficiencies; and
(v) Security equipment and systems, including communication systems.
(5) The VSA must discuss and evaluate key vessel measures and operations, including:
(i) Ensuring performance of all security duties;
(ii) Controlling access to the vessel, through the use of identification systems or otherwise;
(iii) Controlling the embarkation of vessel personnel and other persons and their effects (including personal effects and baggage whether accompanied or unaccompanied);
(iv) Supervising the handling of cargo and the delivery of vessel stores;
(v) Monitoring restricted areas to ensure that only authorized persons have access;
(vi) Monitoring deck areas and areas surrounding the vessel; and
(vii) The ready availability of security communications, information, and equipment.
(6) The VSA must be documented and the VSA report retained by the vessel owner or operator with the VSP. The VSA and VSP must be protected from unauthorized access or disclosure.
(a) A completed Vessel Security Assessment (VSA) report must be submitted with the Vessel Security Plan (VSP) required in § 104.410 of this part.
(b) A vessel owner or operator may generate and submit a report that contains the VSA for more than one vessel subject to this part, to the extent that they share similarities in physical characteristics and operations.
(a) The Company Security Officer (CSO) must ensure a Vessel Security Plan (VSP) is developed and implemented for each vessel. The VSP:
(1) Must identify the CSO and VSO by name or position and provide 24-hour contact information;
(2) Must be written in English;
(3) Must address each vulnerability identified in the Vessel Security Assessment (VSA);
(4) Must describe security measures for each MARSEC Level;
(5) Must state the Master's authority as described in § 104.205; and
(6) May cover more than one vessel to the extent that they share similarities in physical characteristics and operations, if authorized and approved by the Commanding Officer, Marine Safety Center.
(b) Except for foreign vessels that have on board a valid International Ship Security Certificate (ISSC) that attests to the vessel's compliance with SOLAS Chapter XI-2 and the ISPS Code, part A (Incorporated by reference, see § 101.115 of this subchapter), and having taken into account the relevant provisions in the ISPS Code, part B, the VSP must be submitted for approval to the Commanding Officer, Marine Safety Center (MSC), 400 Seventh Street, SW., Room 6302, Nassif Building, Washington, DC 20590-0001, in a written or electronic format. Format for submitting the VSP electronically can be found at
(c) The VSP is sensitive security information and must be protected in accordance with 49 CFR part 1520.
(d) If the VSP is kept in an electronic format, procedures must be in place to
(a) A vessel owner or operator must ensure that the VSP consists of the individual sections listed in this paragraph (a). If the VSP does not follow the order as it appears in the list, the vessel owner or operator must ensure that the VSP contains an index identifying the location of each of the following sections:
(1) Security organization of the vessel;
(2) Personnel training;
(3) Drills and exercises;
(4) Records and documentation;
(5) Response to change in MARSEC Level;
(6) Procedures for interfacing with facilities and other vessels;
(7) Declarations of Security (DoS);
(8) Communications;
(9) Security systems and equipment maintenance;
(10) Security measures for access control;
(11) Security measures for restricted areas;
(12) Security measures for handling cargo;
(13) Security measures for delivery of vessel stores and bunkers;
(14) Security measures for monitoring;
(15) Security incident procedures;
(16) Audits and Vessel Security Plan (VSP) amendments; and
(17) Vessel Security Assessment (VSA) Report.
(b) The VSP must describe in detail how the requirements of subpart B of this part will be met.
(a) On or before December 29, 2003, each vessel owner or operator must either:
(1) Submit one copy of their Vessel Security Plan (VSP) for review and approval to the Commanding Officer, Marine Safety Center (MSC) and a letter certifying that the VSP meets applicable requirements of this part; or
(2) If implementing a Coast Guard approved Alternative Security Program, meet the requirements in § 101.120(b) of this subchapter.
(b) Vessels built on or after July 1, 2004, must comply with the requirements in paragraph (a) of this section 60 days prior to beginning operations.
(c) The Commanding Officer, Marine Safety Center (MSC), will examine each submission for compliance with this part, and either:
(1) Approve it and specify any conditions of approval, returning to the submitter a letter stating its acceptance and any conditions, or
(2) Disapprove it, returning a copy to the submitter with a brief statement of the reasons for disapproval.
(d) A VSP may be submitted and approved to cover more than one vessel where the vessel design and operations are similar.
(e) Each company or vessel, owner or operator, that submits one VSP to cover two or more vessels of similar design and operation must address vessel-specific information that includes the physical and operational characteristics of each vessel.
(f) A plan that is approved by the MSC is valid for 5 years from the date of its approval.
(a)
(i) The vessel owner or operator; or
(ii) The Coast Guard upon a determination that an amendment is needed to maintain the vessel's security. The Coast Guard will give the vessel owner or operator written notice and request that the vessel owner or operator propose amendments addressing any matters specified in the notice. The company owner or operator will have at least 60 days to submit its proposed amendments. Until amendments are approved, the company owner or operator shall ensure temporary security measures are implemented to the satisfaction of the Coast Guard.
(2) Proposed amendments must be sent to the marine safety center at the address shown in § 104.400(b) of this part. If initiated by the company or vessel, owner or operator, the proposed amendment must be submitted at least 30 days before the amendment is to take effect unless the Marine Safety Center (MSC) allows a shorter period. The MSC will approve or disapprove the proposed amendment in accordance with § 104.410 of this part.
(3) If the owner or operator has changed, the Vessel Security Officer (VSO) must amend the Vessel Security Plan (VSP) to include the name and contact information of the new vessel owner or operator and submit the affected portion of the VSP for review and approval in accordance with § 104.410 of this part.
(b)
(2) The VSP must be audited if there is a change in the company's or vessel's ownership or operator, or if there have been modifications to the vessel, including but not limited to physical structure, emergency response procedures, security measures, or operations.
(3) Auditing the VSP as a result of modifications to the vessel may be limited to those sections of the VSP affected by the vessel modifications.
(4) Unless impracticable due to the size and nature of the company or the vessel, personnel conducting internal audits of the security measures specified in the VSP or evaluating its implementation must:
(i) Have knowledge of methods of conducting audits and inspections, and control and monitoring techniques;
(ii) Not have regularly assigned security duties; and
(iii) Be independent of any security measures being audited.
(5) If the results of an audit require amendment of either the VSA or VSP, the VSO or CSO must submit, in accordance with § 104.410 of this part, the amendments to the MSC for review and approval no later than 30 days after completion of the audit and a letter certifying that the amended VSP meets the applicable requirements of this part.
33 U.S.C. 1223, 1231; 46 U.S.C. Chapter 701; Department of Homeland Security Delegation 0170. Subpart D is also issued under the authority of 33 U.S.C. 125 and 46 U.S.C. 3715.
(f) U.S. vessels need not submit the International Ship and Port Facility Code (ISPS) Notice information (Entry (9) to Table 160.206).
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.
33 U.S.C. 1903; 43 U.S.C. 1333; 46 U.S.C. 3103, 3205, 3306, 3307, 3703; 46 U.S.C. Chapter 701; Executive Order 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation 0170; subpart 2.45 also issued under the authority of Act Dec. 27, 1950, Ch. 1155, secs. 1, 2, 64 Stat. 1120 (see 46 U.S.C. App. Note prec. 1).
(a) * * *
(1) * * *
(viii) International Ship Security Certificate.
33 U.S.C. 1321(j); 43 U.S.C. 2103, 3205, 3306, 3307, 3703; 46 U.S.C. Chapter 701; 49 U.S.C. 5103, 5106; Executive Order 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Executive Order 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security Delegation 0170; Section 31.10-021 also issued under the authority § 4109, Public Law 101-380, 104 Stat. 515.
(a) When a tank vessel is found to comply with all applicable regulations, including the applicable provisions of subchapters E, F, J, O, Q, S, and W of this chapter and of 33 CFR parts 104, 155, and 157, the Officer in Charge, Marine Inspection will issue a certificate of inspection to the vessel or to its owners.
33 U.S.C. 1321(j); 46 U.S.C. 2113, 3205, 3306, 3307; 46 U.S.C. Chapter 701; Executive Order 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Executive Order 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security Delegation 0170.
At each inspection for certification and periodic inspection, the inspector shall examine the vessel to determine that it meets vessel security requirements in 33 CFR part 104.
33 U.S.C. 1321(j); 46 U.S.C. 3205, 3306, 3307; 46 U.S.C. Chapter 701; Executive Order 12234; 45 FR 58801; 3 CFR, 1980 Comp., p. 277; Executive Order 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security Delegation 0170.
At each inspection for certification and periodic inspection, the inspector shall examine the vessel to determine that it meets vessel security requirements in 33 CFR part 104.
33 U.S.C. 1321(j); 46 U.S.C. 2103, 3205, 3306, 3307; 46 U.S.C. Chapter 701; 49 U.S.C. App. 1804; Executive Order 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp., p. 743; Executive Order 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation 0170.
(a) An inspection for renewal of a Certificate of Inspection is conducted to determine if the vessel is in satisfactory condition, fit for the service intended, and complies with all applicable regulations. It normally includes inspection and testing of the structure,
33 U.S.C. 1321(j); 46 U.S.C. 3205, 3306, 3307; 46 U.S.C. Chapter 701; Executive Order 111735, 38 FR 21243, 3 CFR 1971-1975 Comp., p. 793; Department of Homeland Security Delegation 0170.
At each inspection for certification and periodic inspection, the inspector shall examine the vessel to determine that it meets vessel security requirements in 33 CFR part 104.
33 U.S.C. 1321(j); 46 U.S.C. 2103, 3205, 3306, 3307; 46 U.S.C. Chapter 701; 49 U.S.C. App. 1804; Executive Order 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp., p. 277; Department of Homeland Security Delegation 0170.
(a) An inspection for renewal of a Certificate of Inspection is conducted to determine if the vessel is in satisfactory condition, fit for the service intended, and complies with all applicable regulations. It normally includes inspection and testing of the structure, machinery, equipment, and on a sailing vessel, rigging and sails. The owner or operator must conduct all tests as required by the OCMI, and make the vessel available for all specific inspections and drills required by subpart H of this part. In addition, the OCMI may require the vessel to get underway.
Coast Guard, DHS.
Temporary interim rule with request for comments and notice of meeting.
This interim rule provides security measures for certain facilities in U.S. ports. It requires owners or operators of facilities to designate security officers for facilities, develop security plans based on security assessments and surveys, implement security measures specific to the facilities' operations, and comply with Maritime Security Levels. This interim rule is one of six interim rules in today's
Meeting. A public meeting will be held on July 23, 2003, from 9 a.m. to 5 p.m., in Washington, DC.
(1) Electronically to the Docket Management System Web site at
(2) By mail to the Docket Management Facility (USCG-2003-14732), U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
You must mail comments on collection of information to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard. Meeting. A public meeting will be held on July 23, 2003 in Washington, DC at the Grand Hyatt Washington, DC, 1000 H Street, NW., Washington, DC 20001.
If you have questions on this interim rule, call Lieutenant Gregory Purvis, U.S. Coast Guard by telephone, 202-267-1103, toll-free telephone, 1-800-842-8740 ext. 7-1103, or electronic mail
Due to the short timeframe given to implement these National Maritime Transportation Security initiatives, as directed by the Maritime Transportation Security Act of 2002 (MTSA, Public Law 107-295, 116 STAT. 2064), and to ensure all comments are in the public venue for these important rulemakings, we are not accepting comments containing protected information for these interim rules. We request you submit comments, as explained in the Request for Comments section below, and discuss your concerns or support in a manner that is not security sensitive. We also request that you not submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as
Electronic forms of all comments received into any of our dockets can be searched by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor unit, etc.) and is open to the public without restriction. You may also review the Department of Transportation's complete Privacy Act Statement in the
We encourage you to participate in this rulemaking by submitting comments and related material. Your comments will be considered for the final rule we plan to issue before November 25, 2003, to replace this interim rule. If you choose to comment on this rule, please include your name and address, identify the specific docket number for this interim rule (USCG-2003-14732), indicate the specific heading of this document to which each comment applies, and give the reason for each comment. If you have comments on another rule, please indicate in a separate letter to the docket for that rulemaking. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under
We will hold a public meeting on July 23, 2003, in Washington, DC at the Grand Hyatt Hotel, at the address listed under
We did not publish a notice of proposed rulemaking for this rulemaking and are making this interim rule effective upon publication. Section 102(d)(1) of the MTSA requires the publication of an interim rule as soon as practicable without regard to the provisions of chapter 5 of title 5, U.S. Code (Administrative Procedure Act). The Coast Guard finds that harmonization of U.S. regulations with maritime security measures adopted by the International Maritime Organization (IMO) in December 2002, and the need to institute measures for the protection of U.S. maritime security as soon as practicable, furnish good cause for this interim rule to take effect immediately under both the Administrative Procedure Act and section 808 of the Congressional Review Act.
A summary of the Coast Guard's regulatory initiatives for maritime security can be found under the “Background and Purpose” section in the preamble to the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
For a discussion of comments on facilities at the public meetings and in the docket, see the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
The purpose of this rulemaking is to require security measures for facilities in order to reduce the risk of and to mitigate the results of an act that threatens the security of personnel, the facility, and the public. This rulemaking combines international requirements and existing domestic policy, and adds part 105, Facility Security, to the new subchapter H, Maritime Security, of Title 33 of the Code of Federal Regulation. A general description of the process used in developing subchapter H and its component parts appears in the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
This rulemaking applies to facilities subject to 33 CFR parts 126, 127, and 154; facilities that receive vessels certified to carry more than 150 passengers; and facilities that receive vessels on international voyages, including vessels solely navigating the Great Lakes.
The MTSA and the International Ship and Port Facility Security (ISPS) Code use different terms to define similar, if not identical, persons or things. These differing terms sometimes match up with the terms used in subchapter H, but sometimes they do not. For a table of the terms used in subchapter H and their related terms in the MTSA and the ISPS Code, see the
This rulemaking does not apply to Outer Continental Shelf (OCS) platforms and deepwater ports. Those structures are covered by the rulemaking “Outer Continental Shelf Facility Security” (USCG-2003-14759), published elsewhere in today's
This preamble describes the facilities regulated by part 105 and the requirements for conducting Facility Security Assessments, developing Facility Security Plans, and implementing security measures and procedures. The requirements in part 105 are consistent with requirements in the ISPS Code. Facility security includes the requirements discussed below:
The Coast Guard, as provided in 33 CFR part 126, 127, and 154, will verify facility compliance with this part during inspections.
As required by Regulation 3 of Chapter XI-2 of the International Convention for Safety of Life at Sea, 1974 (SOLAS) and the ISPS Code, part A, section 5, the Coast Guard has published additional requirements that provide the U.S. (as a contracting government) with requirements for setting and communicating changes in Maritime Security (MARSEC) Level, completing Declarations of Security, and additional instructions for all facilities when MARSEC Level 3 is set.
The waiver section details procedures for requesting a waiver for the benefit of facility owners or operators who find specific requirements of the rulemaking to be unnecessary.
The equivalents section details procedures for requesting an equivalency for specific requirements of the rulemaking. Equivalents are intended to allow facility owners or operators to provide an alternative provision or arrangement that provides the same level of security as a specific requirement contained within this part.
This part makes provision to allow owners or operators of facilities to implement an Alternative Security Program that has been reviewed and accepted by the Commandant (G-MP), to meet the requirements of this part. Alternative Security Programs must be comprehensive and based on a security assessment to demonstrate it meets the intent of each section of this part. Owners or operators who choose to implement an appropriate Alternative Security Program will be required to implement it in its entirety to be deemed in compliance with this part.
In our evaluation of waivers, equivalencies, and Alternative Security Programs, the Coast Guard will accept a self-assessment or demonstration using any risk management tools acceptable to the Coast Guard. This demonstration may be requested to show that the proposed waiver, equivalency or Alternative Security Program is at least as effective as that intended by this interim rule.
This rule requires each facility owner or operator to develop an effective security plan that incorporates detailed preparation, prevention, and response activities for each MARSEC Level, and detail the organizations, or personnel responsible for carrying out those activities. The requirements discussed in this subpart are also consistent with requirements in the ISPS Code. Facility owner or operator responsibilities include:
• Designating a Facility Security Officer.
• Ensuring a Facility Security Assessment is conducted.
• Developing and submitting for approval a Facility Security Plan.
• Operating the facility in accordance with the approved Facility Security Plan.
• Implementing additional security measures required by changes in MARSEC Level.
• Reporting all breaches of security and security incidents.
• Coordinating shore leave for vessel personnel or crew change-out, as well as access through the facility of visitors to the vessel, including representatives of seafarers' welfare and labor organizations, in advance of a vessel's arrival. (In the past, some facilities may have denied access to seafarers and seafarer welfare organizations where there was not an articulable security basis for doing so. The Coast Guard is including their provision in this interim rule to encourage facilities to allow such access when appropriate.)
This rule requires that a facility owner or operator designate in writing a Facility Security Officer for each facility. The Facility Security Officer may be a full-time or collateral-duty position. The Facility Security Officer must have general knowledge on a range of issues such as security administration, relevant international laws, domestic regulations, current security threats and patterns, risk assessment methodology, inspections, control procedures and conducting audits. The most important duties that must be performed by the Facility Security Officer would include implementing a Facility Security Plan; periodically auditing and updating the Facility Security Assessment and Facility Security Plan; ensuring that adequate training is provided to facility personnel; and ensuring the facility is operating in accordance with the plan and in continuous compliance with part 105. The Facility Security Officer may assign security duties to other facility personnel; however, the Facility Security Officer remains responsible for these duties.
Required training for facility personnel must be specified in the Facility Security Plan. Specific security training courses for the Facility Security Officer and facility personnel will not be required by the Coast Guard. While formal training may be appropriate, we are not mandating specifics. Facility owners or operators must certify that security personnel are, in fact, properly trained to perform their duties. The types of training required must also be consistent with the training requirements described in this subpart. The Facility Security Officer is also required to ensure that facility security persons possess necessary training to maintain the overall security of the facility.
Exercises are required to ensure the adequacy of the Facility Security Plans and are required to be conducted at least once each calendar year, with no more than 18 months between exercises. Drills, which are smaller in scope than exercises, must be conducted at least every 3 months. Exercises may be facility specific, or as part of a cooperative exercise program with applicable Facility and Vessel Security Plans or Port exercises. Exercises for security may be combined with other required exercises, as appropriate.
Procedures and/or policies must be developed and implemented to ensure security systems and equipment are tested and operated in accordance with the instructions of the manufacturer and ready for use.
Security measures for specific activities must be scalable in order to provide increasing levels of security at increasing MARSEC Levels. An effective security program relies on detailed procedures that clearly indicate the preparation and prevention activities that will occur at each threat level and the organizations, or personnel, who are responsible for carrying out those activities. Security Measures must be developed for the following activities:
• Security measures for access control;
• Security measures for restricted areas;
• Security measures for handling cargo;
• Security measures for delivery of vessel stores and bunkers; and
• Security measures for monitoring.
Each facility owner or operator must develop security incident procedures for responding to transportation security incidents. The security incident procedures must explain the facility's reaction to an emergency, including the notification and coordination with local, State, and federal authorities and Under Secretary of Emergency Preparedness and Response. The security incident procedures must also explain actions for securing the facility and evacuating
A Declaration of Security is a written agreement between the facility and a vessel that provides a means for ensuring that critical security concerns are properly addressed prior to and during a vessel-to-facility interface. The Declaration of Security addresses security by delineating responsibilities for security arrangements and procedures between a vessel and facility. This requirement is similar to the existing U.S. practice for vessel-to-facility oil transfer proceedings.
Only certain passenger vessels and vessels carrying Certain Dangerous Cargoes, in bulk, will complete a Declaration of Security for every evolution regardless of the MARSEC Level. At MARSEC Levels 2 and 3, all vessels and facilities would need to complete the Declaration of Security.
Facilities that frequently receive the same vessel may execute a continuing Declaration of Security—a single Declaration of Security for multiple visits.
All Declarations of Security must state the security activities for which the facility and vessel are responsible during vessel-to-facility interfaces. Declarations of Security must be kept as part of the facility's recordkeeping.
This rule requires all regulated facilities to complete a Facility Security Assessment, which is an essential and integral part of the process of developing and updating the required Facility Security Plan. The Facility Security Plan is based on the results of the Facility Security Assessment. The Facility Security Officer must examine and evaluate existing facility protective measures, procedures, and operations.
The Facility Security Officer must also examine each identified point of access, including rail access, roads, waterside, and gates, and evaluate its potential for use by individuals who might engage in unlawful acts, including individuals with legitimate access, as well as those seeking unauthorized entry.
Each facility owner or operator is required to document and retain its Facility Security Assessment for a period of five years. Prior to conducting a Facility Security Assessment, the Facility Security Officer is responsible for researching and using available information on the assessment of threat for the port at which the facility is located, as well as vessels that would call on the facility. The first step in the facility security process is to conduct an on-scene survey. The on-scene survey is used to examine and evaluate existing facility protective measures, procedures and operations. In conducting the Facility Security Assessment, the facility owner or operator must ensure that the Facility Security Officer analyzes the facility background information and the results of the on scene survey, and considering the requirements of this interim rule, provide recommendation to establish and prioritize the security measures that should be included in the Facility Security Plan. The facility owner or operator them must ensure that a written Facility Security Assessment report is prepared and included in the Facility Security Plan. The Facility Security Assessment must be reviewed and updated each time the Facility Security Plan is revised and when the Facility Security Plan is submitted for re-approval every five years. The facility owner or operator then must ensure that a written Facility Security Assessment report is prepared and included as an appendix to the Facility Security Plan.
The Facility Security Officer is also responsible for ensuring that the Facility Security Assessment is periodically reviewed and updated, taking into account changes in the facility and its operations. Before a plan could be renewed or revised, a new Facility Security Assessment would need to be conducted.
The Facility Security Officer is responsible for obtaining and recording any specific information required to conduct the Facility Security Assessment.
This subpart contains requirements for Facility Security Plans. The requirements discussed in this subpart are consistent with requirements in the ISPS Code.
Facility Security Plans must incorporate the results of the required Facility Security Assessment and consider the recommended measures appropriate to each facility.
Facility Security Plans can be combined with or complement existing safety management systems. The plans may be kept in an electronic format, protected by means to prevent it from being deleted, destroyed or overwritten. The plans must also be protected from unauthorized access or disclosure.
Facility Security Plans required under this rulemaking must contain:
• A list of measures and equipment needed to prevent or deter dangerous substances and devices which could be used against people, vessels or ports and the carriage of which is not authorized from being introduced by any means on to the facility;
• Requirements for the prevention of unauthorized access to the facility and to restricted areas of the facility;
• Documented procedures for responding to security threats or breaches of security, including provisions for maintaining critical operations of the facility or the vessel-to-port interface;
• Documented procedures for evacuation in case of security threats or breaches of security;
• Procedures for training, exercises, and drills associated with the plan;
• Documented procedures for interfacing with port and vessel security activities;
• Documented procedures for the periodic review of the Facility Security Plan and for updating it;
• Documented procedures for reporting security incidents;
• Written designation of the Facility Security Officer;
• A list of the duties and responsibilities of all facility personnel with a security role;
• A list of measures to ensure the security of information contained in the plan;
• A maintenance system to maintain operational readiness of all required equipment using manufacturers' recommended maintenance instructions and periodic inspection;
• A list of measures needed to ensure effective security of cargo, cargo processing, and the cargo-handling equipment at the facility; and
• A completed Facility Vulnerability and Security Measures Summary (Form CG-6025) for each facility covered by the Plan.
The Facility Security Plan, including the Facility Security Assessment report and the Facility Vulnerability and Security Measures Summary (Form CG-6025), must be submitted to and reviewed by the cognizant COTP. Once the COTP finds that the plan meets the security requirements in part 105, the submitter will receive an approval letter that may contain conditions of the approval.
If the cognizant COTP requires more time than is indicated in the requirements of the interim rule to review a submitted Facility Security Plan, the cognizant COTP may return to the submitter a written acknowledgement stating that the Coast Guard is currently reviewing the
If the COTP finds that the Facility Security Plan does not meet the security requirements, the plans would be returned to the facility with a disapproval letter with an explanation of why the plan does not meet the part 105 requirements.
Security plans must be reviewed by the Coast Guard every time:
• The Facility Security Assessment is altered;
• Failures are identified during an exercise of the Facility Security Plan; and
• There is a change in ownership or operational control of the facility or there are amendments to the Facility Security Plan.
This interim rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and has been reviewed by the Office of Management and Budget under that Order. It requires an assessment of potential costs and benefits under section 6(a)(3) of that Order. It is significant under the regulatory policies and procedures of the Department of Homeland Security. A Cost Assessment is available in the docket as indicated under
For the purposes of good business practice or regulations promulgated by other Federal and State agencies, many companies already have spent a substantial amount of money and resources to upgrade and improve security. The costs shown in this assessment do not include the security measures these companies have already taken to enhance security.
We realize that every company engaged in maritime commerce will not implement this interim rule exactly as presented in the assessment. Depending on each company's choices, some companies could spend much less than what is estimated herein while others could spend significantly more. In general, we assume that each company will implement this interim rule differently based on the type of facilities it owns or operates and whether it engages in international or domestic trade.
The population affected by this interim rule is approximately 5,000 facilities, and the estimated Present Value (PV) cost to these facilities is approximately PV $5.399 billion (2003 to 2012, 7 percent discount rate). Approximately PV $2.718 billion of this total is attributed to facilities engaged in the transfer of hazardous bulk liquids (petroleum, edible oils, and liquefied gases). The remaining PV $2.681 billion is attributable to facilities that receive vessels on international voyages or carry more than 150 passengers, or fleet barges carrying certain dangerous cargoes. During the initial year of compliance, the cost is attributable to purchasing and installing equipment, hiring security officers, and preparing paperwork. The initial cost is an estimated $1.125 billion (non-discounted, $498 million for the facilities with hazardous bulk liquids, $627 million for the other facilities). Following initial implementation, the annual cost is an estimated $656 million (non-discounted, $341 million for the facilities with hazardous bulk liquids, $315 million for the other facilities).
Approximately 51 percent of the initial cost is for installing or upgrading equipment, 30 percent for hiring and training Facility Security Officers, 14 percent for hiring additional security guards, and 5 percent for paperwork (Facility Security Assessments and Facility Security Plans). Following the first year, approximately 52 percent of the annual cost is for Facility Security Officers (cost and training), 24 percent for security guards, 9 percent for paperwork (updating Facility Security Assessments and Facility Security Plans), 9 percent for operations and maintenance for equipment, and approximately 6 percent for drills. The cost of facility security consists primarily of installing or upgrading equipment and designating Facility Security Officers.
This rule is one of six interim rules that implement national maritime security initiatives concerning general provisions, Area Maritime Security (ports), vessels, facilities, Outer Continental Shelf facilities, and AIS. The Coast Guard used the National Risk Assessment Tool (N-RAT) to assess benefits that would result from increased security for vessels, facilities, Outer Continental Shelf facilities, and ports. The N-RAT considers threat, vulnerability, and consequences for several maritime entities in various security-related scenarios. For a more detailed discussion on the N-RAT and how we employed this tool, refer to “Applicability of National Maritime Security Initiatives” in the interim rule titled “Implementation of National Maritime Security Initiatives” (USGC-2003-14792) published elsewhere in today's
We recognized that the interim rules are a “family” of rules that will reinforce and support one another in their implementation. We must ensure, however, that risk reduction that is credited in one rulemaking is not also credited in another. For a more detailed discussion on the benefit assessment and how we addressed the potential to double-count the risk reduced, refer to “Benefit Assessment” in the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
We determined annual risk points reduced for each of the six interim rules using the N-RAT. The benefits are apportioned among the Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in Table 1, the implementation of Facility Security Plans for the affected population reduces 473,659 risk points annually through 2012. The benefits attributable for part 101—General Provisions—were not considered separately since it is an overarching section for all the parts.
Once we determined the annual risk points reduced, we discounted these estimates to their present value (seven percent discount rate, 2003-2012) so that they could be compared to the costs. We presented the cost effectiveness, or dollars per risk point reduced, in two ways: First, we compared the first-year cost and first-year benefit because first-year cost is the highest in our assessment as companies develop security plans and purchase equipment. Second, we compared the 10-year PV cost and the 10-year PV benefit. The results of our assessment are presented in Table 2.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this interim 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. This interim rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this interim rule is exempt, we have reviewed it for potential economic impacts on small entities. An Initial Regulatory Flexibility Analysis discussing the impact of this interim rule on small entities is available in the docket where indicated under
Our assessment (copy available in the docket) concludes that implementing this interim rule may have a significant economic impact on a substantial number of small entities.
There are approximately 1,200 companies that own facilities that will be affected by the interim rule. We researched these companies, and found revenue and business size data for 581 of them (48 percent). Of the 581, we determined that 296 are small entities according to Small Business Administration standards.
The cost of the interim rule to each facility is dependent on the security measures already in place at each facility and on the relevant risk to a maritime transportation security incident. The interim rule calls for specific security measures to be in place at each affected facility. We realize, however, that most facilities already have implemented security measures that may satisfy the requirements of this rule. For example, we note that every facility will develop a Facility Security Assessment and a Facility Security Plan, but not all of them may need to install or upgrade fences or lighting equipment.
For this reason, we analyzed the small entities under two scenarios, a higher cost and lower cost scenarios. The higher cost scenario uses an estimated initial cost of $1,942,500 and its corresponding annual cost of $742,700. The higher cost scenario assumes extensive capital improvements will be undertaken by the facilities in addition to the cost of complying with the minimum requirements (assigning Facility Security Officers, drafting Facility Security Assessments, drafting Facility Security Plans, conducting Training, performing Drills, and completing Declarations of Security). The lower cost scenario used an initial cost of $133,500 and annual cost of $156,800 for complying with the minimum requirements in the interim rule.
In the higher cost scenario, we estimate that the annual revenues of 94 percent of the small entities may be impacted initially by more than 5 percent, while the annual revenues of 80 percent of the small entities may be impacted annually by more than 5 percent. In the lower cost scenario, we found that the annual revenues of 57 percent of the small entities may be impacted initially and annually by more than 5 percent.
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 interim 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 consult LT Gregory Purvis by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-
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 interim rule calls for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collections, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.
This interim rule modifies an existing OMB-approved collection—1625-0077 [formerly 2115-0557]. A summary of the revised collection follows.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this interim rule to the Office of Management and Budget (OMB) for its review of the collection of information. Due to the circumstances surrounding this temporary rule, we asked for “emergency processing” of our request. We received OMB approval for the collection of information on June 16, 2003. It is valid until December 31, 2003.
We ask for public comment on the collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.
If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under
You need not respond to a collection of information unless it displays a currently valid control number from OMB. We received OMB approval for the collection of information on June 16, 2003. It is valid until December 31, 2003.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. See the “Federalism” section in the interim rule preamble titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792), published elsewhere in today's
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. This rule is exempted from assessing the effects of the regulatory action as required by the Act because it is necessary for the national security of the U.S.
This interim rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental
This interim 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 interim rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. While this interim rule is an economically significant rule, it does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This interim 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 tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this interim 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. Although it is a “significant regulatory action” under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This interim rule has a positive effect on the supply, distribution, and use of energy. The interim rule provides for security assessments, plans, procedures, and standards, which will prove beneficial for the supply, distribution, and use of energy at increased levels of maritime security.
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the U.S. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The Act also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We have assessed the potential effect of this interim rule and have determined that it would likely create obstacles to the foreign commerce of the U.S. However, because these regulations are being put in place in order to further a legitimate domestic objective, namely to increase the security of the U.S., any obstacles created by the regulation are not considered unnecessary obstacles.
We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(a) and (34)(c), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This interim rule concerns security assessments, plans, training, and the establishment of security positions that will contribute to a higher level of marine safety and security for U.S. ports. A “Categorical Exclusion Determination” is available in the docket where indicated under
This rulemaking will not significantly impact the coastal zone. Further, the rulemaking and the execution of this rule will be done in conjunction with appropriate State coastal authorities. The Coast Guard will, therefore, comply with the requirements of the Coastal Zone Management Act while furthering its intent to protect the coastal zone.
Facilities, Maritime security, Reporting and recordkeeping requirements, Security measures.
33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191; 33 CFR 1.05-1,6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.
Except as specifically stated in this subpart, the definitions in part 101 of this subchapter apply to this part.
(a) The requirements in this part apply to the owner or operator of any U.S.:
(1) Facility subject to 33 CFR parts 126, 127, or 154;
(2) Facility that receives vessels certificated to carry more than 150 passengers;
(3) Facility that receives vessels subject to the International Convention for Safety of Life at Sea, 1974, or that are commercial vessels subject to subchapter I of title 46, Code of Federal Regulations, greater than 100 gross register tons on international voyages, including vessels solely navigating the Great Lakes; or
(4) Fleeting facility that receives barges carrying, in bulk, cargoes regulated by subchapters D and O of chapter I, title 46, Code of Federal Regulations or Certain Dangerous Cargoes.
(b) An owner or operator of any facility not covered in paragraph (a) of this section is subject to parts 101 through 103 of this subchapter.
(c) This part does not apply to the owner or operator of the following U.S. facilities:
(1) A facility owned and operated by the U.S. that is used primarily for military purposes.
(2) An oil and natural gas production, exploration, or development facility regulated by 33 CFR parts 126 or 154 if:
(i) The facility is engaged solely in the exploration, development, or production of oil and natural gas; and
(ii) The facility does not meet or exceed the operating conditions in § 106.105 of this subchapter;
(3) A facility that supports the production, exploration, or development of oil and natural gas regulated by 33 CFR parts 126 or 154 if:
(i) The facility is engaged solely in the support of exploration, development, or production of oil and natural gas; and
(ii) The facility transports or stores quantities of hazardous materials that do not meet and exceed those specified in 49 CFR 172.800(b)(1) through (6); or
(iii) The facility stores less than 42,000 gallons of cargo regulated by 33 CFR part 154;
(4) A mobile facility regulated by 33 CFR part 154; or
(5) An isolated facility that receives materials regulated by 33 CFR parts 126 or 154 by vessel due to the lack of road access to the facility and does not distribute the material through secondary marine transfers.
(a) A facility serving ferries and passenger vessels certificated to carry more than 150 passengers, other than cruise vessels, may designate an area within the facility as a public access area.
(b) A public access area is a defined space within a facility that is open to all persons and provides access through the facility from public thoroughfares to the vessel.
(a) An owner or operator of any barge fleeting facility subject to this part is exempt from complying with § 105.265, Security measures for handling cargo; and § 105.270, Security measures for delivery of vessel stores and bunkers.
(b) A public access area designated under § 105.106 is exempt from the requirements for screening and identification of persons in § 105.255(c), (e)(1), and (e)(3).
(a) On or before December 29, 2003, each facility owner or operator must submit to the cognizant COTP for each facility a Facility Security Plan (FSP) described in subpart D of this part for review and approval.
(b) On or before June 30, 2004, each facility owner or operator must be operating in compliance with this part.
Each facility owner or operator subject to this part must ensure, no later than July 1, 2004, that copies of the following documentation are available at the facility and are made available to the Coast Guard upon request:
(a) The approved Facility Security Plan (FSP), as well as any approved revisions or amendments thereto, and a letter of approval from the COTP dated within the last 5 years;
(b) The FSP submitted for approval and an acknowledgement letter from the COTP stating that the Coast Guard is currently reviewing the FSP submitted for approval, and that the facility may continue to operate so long as the facility remains in compliance with the submitted FSP; or
(c) For facilities operating under a Coast Guard-approved Alternative Security Program as provided in § 105.140, a copy of the Alternative Security Program the facility is using and a letter signed by the facility owner or operator, stating which Alternative Security Program the facility is using and certifying that the facility is in full compliance with that program.
When a facility is not in compliance with the requirements of this part, the facility owner or operator must notify the cognizant COTP and request a waiver to continue operations.
Any facility owner or operator may apply for a waiver of any requirement of this part that the facility owner or operator considers unnecessary in light of the nature or operating conditions of the facility, prior to operating. A request for a waiver must be submitted in writing with justification to the Commandant (G-MP) at 2100 Second St., SW., Washington, DC 20593. The Commandant (G-MP) may require the facility owner or operator to provide data for use in determining the validity of the requested waiver. The Commandant (G-MP) may grant, in writing, a waiver with or without conditions only if the waiver will not reduce the overall security of the facility, its employees, visiting vessels, or ports. The Commandant (G-MP) may grant a waiver with or without written conditions only if the waiver will not reduce the overall security of the facility, its employees, visiting vessels, or port.
For any measure required by this part, the facility owner or operator may propose an equivalent as provided in § 101.130 of this subchapter.
(a) A facility owner or operator may use an Alternative Security Program approved under § 101.120 of this subchapter if:
(1) The Alternative Security Program is appropriate to that facility;
(2) The Alternative Security Program is implemented in its entirety.
(b) A facility owner or operator using an Alternative Security Program approved under § 101.120 of this subchapter must complete and submit to the cognizant COTP a Facility Vulnerability and Security Measures Summary (Form CG-6025) in appendix A to part 105—Facility Vulnerability and Security (CG-6025).
Each facility owner or operator subject to this part must comply with any instructions contained in a MARSEC Directive issued under § 101.405 of this subchapter.
Any person directly affected by a decision or action taken under this part, by or on behalf of the Coast Guard, may appeal as described in § 101.420 of this subchapter.
(a) Each facility owner or operator must ensure that the facility operates in compliance with the requirements of this part.
(b) For each facility, the facility owner or operator must:
(1) Define the security organizational structure and provide each person exercising security duties and responsibilities within that structure the support needed to fulfill those obligations;
(2) Designate, in writing, by name or by title, a Facility Security Officer (FSO) and identify how the officer can be contacted at any time;
(3) Ensure that a Facility Security Assessment (FSA) is conducted;
(4) Ensure the development and submission for approval of a Facility Security Plan (FSP);
(5) Ensure that the facility operates in compliance with the approved FSP;
(6) Ensure that adequate coordination of security issues takes place between the facility and vessels that call on it, including the execution of a Declaration of Security (DoS) as required by this part;
(7) Ensure coordination of shore leave for vessel personnel or crew change-out, as well as access through the facility for visitors to the vessel (including representatives of seafarers' welfare and labor organizations), with vessel operators in advance of a vessel's arrival;
(8) Ensure, within 12 hours of notification of an increase in MARSEC Level, implementation of the additional security measures required for the new MARSEC Level; and
(9) Ensure the report of all breaches of security and security incidents to the National Response Center in accordance with part 101 of this subchapter.
(a)
(2) The same person may serve as the FSO for more than one facility, provided the facilities are in the same COTP zone and are not more than 50 miles apart. If a person serves as the FSO for more than one facility, the name of each facility for which he or she is the FSO must be listed in the Facility Security Plan (FSP) of each facility for which or she is the FSO.
(3) The FSO may assign security duties to other facility personnel; however, the FSO retains the responsibility for these duties.
(b)
(i) Security organization of the facility;
(ii) General vessel and facility operations and conditions;
(iii) Vessel and facility security measures, including the meaning and the requirements of the different MARSEC Levels;
(iv) Emergency preparedness, response, and contingency planning;
(v) Security equipment and systems, and their operational limitations; and
(vi) Methods of conducting audits, inspections, control, and monitoring techniques.
(2) In addition to knowledge and training required in paragraph (b)(1) of this section, the FSO must have knowledge of and receive training in the following, as appropriate:
(i) Relevant international laws and codes, and recommendations;
(ii) Relevant government legislation and regulations;
(iii) Responsibilities and functions of local, State, and Federal law enforcement agencies;
(iv) Risk assessment methodology;
(v) Methods of facility security surveys and inspections;
(vi) Instruction techniques for security training and education, including security measures and procedures;
(vii) Handling sensitive security information and security related communications;
(viii) Current security threats and patterns;
(ix) Recognizing and detecting dangerous substances and devices;
(x) Recognizing characteristics and behavioral patterns of persons who are likely to threaten security;
(xi) Techniques used to circumvent security measures;
(xii) Conducting physical searches and non-intrusive inspections;
(xiii) Conducting security drills and exercises, including exercises with vessels; and
(xiv) Assessing security drills and exercises.
(c)
(1) Ensure that the Facility Security Assessment (FSA) is conducted;
(2) Ensure the development and implementation of a FSP;
(3) Ensure that an annual audit is conducted, and if necessary if the FSA and FSP are updated;
(4) Ensure the FSP is exercised per § 105.220 of this part;
(5) Ensure that regular security inspections of the facility are conducted;
(6) Ensure the security awareness and vigilance of the facility personnel;
(7) Ensure adequate training to personnel performing facility security duties;
(8) Ensure that occurrences that threaten the security of the facility are recorded and reported to the owner or operator;
(9) Ensure the maintenance of records required by this part;
(10) Ensure the preparation and the submission of any reports as required by this part;
(11) Ensure the execution of any required Declarations of Security with Vessel Security Officers;
(12) Ensure the coordination of security services in accordance with the approved FSP;
(13) Ensure that security equipment is properly operated, tested, calibrated, and maintained;
(14) Ensure the recording and reporting of attainment changes in MARSEC Levels to the owner or operator and the cognizant COTP;
(15) When requested, ensure that the Vessel Security Officers receive assistance in confirming the identity of visitors and service providers seeking to board the vessel through the facility;
(16) Ensure notification, as soon as possible, to law enforcement personnel and other emergency responders to permit a timely response to any transportation security incident;
(17) Ensure that the FSP is submitted to the cognizant COTP for approval, as well as any plans to change the facility or facility infrastructure prior to amending the FSP; and
(18) Ensure that all facility personnel are briefed of changes in security conditions at the facility.
Facility personnel responsible for security duties must have knowledge, through training or equivalent job experience, in the following, as appropriate:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(d) Techniques used to circumvent security measures;
(e) Crowd management and control techniques;
(f) Security related communications;
(g) Knowledge of emergency procedures and contingency plans;
(h) Operation of security equipment and systems;
(i) Testing, calibration, and maintenance of security equipment and systems;
(j) Inspection, control, and monitoring techniques;
(k) Relevant provisions of the Facility Security Plan (FSP);
(l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores; and
(m) The meaning and the consequential requirements of the different MARSEC Levels.
All other facility personnel, including contractors, whether part-time, full-time, temporary, or permanent, must have knowledge of, through training or equivalent job experience, in the following:
(a) Relevant provisions of the Facility Security Plan (FSP);
(b) The meaning and the consequential requirements of the different MARSEC Levels as they apply to them, including emergency procedures and contingency plans;
(c) Recognition and detection of dangerous substances and devices;
(d) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security; and
(e) Techniques used to circumvent security measures.
(a)
(b)
(2) Drills must test individual elements of the FSP, including response to security threats and incidents. Drills should take into account the types of operations of the facility, facility personnel changes, the type of vessel the facility is serving, and other relevant circumstances. Examples of drills include unauthorized entry to a restricted area, response to alarms, and notification of law enforcement authorities.
(3) If a vessel is moored at the facility on the date the facility has planned to conduct any drills, the facility cannot require the vessel or vessel personnel to be a part of or participate in the facility's scheduled drill.
(c)
(2) Exercises may be:
(i) Full scale or live;
(ii) Tabletop simulation or seminar;
(iii) Combined with other appropriate exercises; or
(iv) A combination of the elements in paragraphs (c)(2)(i) through (iii) of this section.
(3) Exercises may be facility-specific or part of a cooperative exercise program with applicable facility and vessel security plans or comprehensive port exercises.
(4) Each exercise must test communication and notification procedures, and elements of coordination, resource availability, and response.
(5) Exercises are a full test of the security program and must include substantial and active participation of FSOs, and may include government authorities and vessels visiting the facility. Requests for participation of Company and Vessel Security Officers in joint exercises should consider the security and work implications for the vessel.
(a) Unless otherwise specified in this section, the Facility Security Officer (FSO) must keep records of the activities as set out in paragraph (b) of this section for at least 2 years and make them available to the Coast Guard upon request.
(b) Records required by this section may be kept in electronic format. If kept in an electronic format, they must be protected against unauthorized deletion, destruction, or amendment. The following records must be kept:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c) Any record required by this part must be protected from unauthorized access or disclosure.
(a) The facility owner or operator must ensure the facility operates in compliance with the security requirements in this part for the MARSEC Level in effect for the port.
(b) When notified of an increase in the MARSEC Level, the facility owner and operator must ensure:
(1) Vessels moored to the facility and vessels scheduled to arrive at the facility within 96 hours of the MARSEC Level change are notified of the new MARSEC Level and the Declaration of Security is revised as necessary;
(2) The facility complies with the required additional security measures within 12 hours; and
(3) The facility reports compliance or noncompliance to the COTP.
(c) For MARSEC Levels 2 and 3, the Facility Security Officer must inform all facility personnel about identified threats, and emphasize reporting procedures and stress the need for increased vigilance.
(d) An owner or operator whose facility is not in compliance with the requirements of this section, must inform the COTP and obtain approval prior to interfacing with a vessel or continuing operations.
(e) At MARSEC Level 3, in addition to the requirements in this part, a
(1) Use of waterborne security patrol;
(2) Use of armed security personnel to control access to the facility and to deter, to the maximum extent practical, a transportation security incident; and
(3) Examination of piers, wharves, and similar structures at the facility for the presence of dangerous substances or devices underwater or other threats.
(a) The Facility Security Officer must have a means to effectively notify facility personnel of changes in security conditions at the facility.
(b) Communication systems and procedures must allow effective and continuous communications between the facility security personnel, vessels interfacing with the facility, the cognizant COTP, and national and local authorities with security responsibilities.
(c) At each active facility access point, provide a means of contacting police, security control, or an emergency operations center, by telephones, cellular phones, and/or portable radios, or other equivalent means.
(d) Facility communications systems must have a backup means for both internal and external communications.
The facility owner or operator must ensure that there are measures for interfacing with vessels at all MARSEC Levels.
(a) Each facility owner or operator must ensure procedures are established for requesting a DoS and for handling DoS requests from a vessel.
(b) At MARSEC Level 1, a facility receiving a cruise ship or a manned vessel carrying Certain Dangerous Cargo, in bulk, must comply with the following:
(1) Prior to the arrival of a vessel to the facility, the Facility Security Officer (FSO) and Master, Vessel Security Officer (VSO), or their designated representatives must coordinate security needs and procedures, and agree upon the contents of the DoS for the period of time the vessel is at the facility; and
(2) Upon the arrival of the vessel at the facility, the FSO and Master, VSO, or their designated representative, must sign the written DoS.
(c) Neither the facility nor the vessel may embark or disembark passengers, nor transfer cargo or vessel stores until the DoS has been signed and implemented.
(d) At MARSEC Levels 2 and 3, the FSOs of facilities interfacing with manned vessels subject to part 104 of this subchapter must sign and implement DoSs.
(e) At MARSEC Levels 1 and 2, FSOs of facilities that frequently interface with the same vessel may implement a continuing DoS for multiple visits, provided that:
(1) The DoS is valid for a specific MARSEC Level;
(2) The effective period at MARSEC Level 1 does not exceed 90 days; and
(3) The effective period at MARSEC Level 2 does not exceed 30 days.
(f) When the MARSEC Level increases beyond that contained in the DoS, the continuing DoS is void and a new DoS must be executed in accordance with this section.
(g) A copy of all currently valid continuing DoSs must be kept with the Facility Security Plan.
(h) The COTP may require, at any time, at any MARSEC Level, any facility subject to this part to implement a DoS with the VSO prior to any vessel-to-facility interface when he or she deems it necessary.
(a) Security systems and equipment must be in good working order and inspected, tested, calibrated, and maintained according to manufacturers' recommendations.
(b) Security systems must be regularly tested in accordance with the manufacturers' recommendations; noted deficiencies corrected promptly; and the results recorded as required in § 105.225 of this subpart.
(c) The FSP must include procedures for identifying and responding to security system and equipment failures or malfunctions.
(a)
(1) Deter the unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports;
(2) Secure dangerous substances and devices that are authorized by the owner or operator to be on the facility; and
(3) Control access to the facility.
(b) The facility owner or operator must ensure that:
(1) The locations where restrictions or prohibitions that prevent unauthorized access are applied for each MARSEC Level. Each location allowing means of access to the facility must be addressed;
(2) The identification of the type of restriction or prohibition to be applied and the means of enforcing them;
(3) The means of identification required to allow access to the facility and for individuals and vehicles to remain on the facility without challenge are established; and
(4) The identification of the locations where persons, personal effects and vehicle screenings are to be conducted. The designated screening areas should be covered to provide for continuous operations regardless of the weather conditions.
(c) The facility owner or operator must ensure that an identification system is established for checking the identification of facility personnel or other persons seeking access to the facility that:
(1) Allows identification of authorized and unauthorized persons at any MARSEC Level;
(2) Is coordinated, when practicable, with identification systems of vessels that use the facility;
(3) Is updated regularly;
(4) Uses disciplinary measures to discourage abuse;
(5) Allows temporary or continuing access for facility personnel and visitors, including seafarers' chaplains and union representatives, through the use of a badge or other system to verify their identity; and
(6) Allows certain long-term, frequent vendor representatives to be treated more as employees than as visitors.
(d) The facility owner or operator must establish in the approved Facility Security Plan (FSP) the frequency of application of any access controls, particularly if they are to be applied on a random or occasional basis.
(e)
(1) Screen persons, baggage (including carry-on items), personal effects, and vehicles, including delivery vehicles for dangerous substances and devices at the rate specified in the approved FSP;
(2) Conspicuously post signs that describe security measures currently in effect and clearly state that:
(i) Entering the facility is deemed valid consent to screening or inspection; and
(ii) Failure to consent or submit to screening or inspection will result in denial or revocation of authorization to enter;
(3) Check the identification of any person seeking to enter the facility,
(i) Joining instructions;
(ii) Passenger tickets;
(iii) Boarding passes;
(iv) Work orders, pilot orders, or surveyor orders;
(v) Government identification; or
(vi) Visitor badges issued in accordance with an identification system required in paragraph (c) of this section;
(4) Deny or revoke a person's authorization to be on the facility if the person is unable or unwilling, upon the request of facility personnel, to establish his or her identity or to account for his or her presence. Any such incident must be reported in compliance with this part;
(5) Designate restricted areas and provide appropriate access controls for these areas;
(6) Identify access points that must be secured or attended to deter unauthorized access;
(7) Deter unauthorized access to the facility and to designated restricted areas within the facility;
(8) Screen by hand or device, such as x-ray, all unaccompanied baggage prior to loading onto a vessel; and
(9) Secure unaccompanied baggage after screening in a designated restricted area and maintain security control during transfers between the facility and a vessel.
(f)
(1) Increasing the frequency and detail of the screening of persons, baggage, and personal effects for dangerous substances and devices entering the facility;
(2) X-ray screening of all unaccompanied baggage;
(3) Assigning additional personnel to guard access points and patrol the perimeter of the facility to deter unauthorized access;
(4) Limiting the number of access points to the facility by closing and securing some access points and providing physical barriers to impede movement through the remaining access points;
(5) Denying access to visitors who do not have a verified destination;
(6) Deterring waterside access to the facility, which may include, using waterborne patrols to enhance security around the facility; or
(7) Screening vehicles and their contents for dangerous substances and devices at the rate specified for MARSEC Level 2 in the approved FSP.
(g)
(1) Screening all persons, baggage, and personal effects for dangerous substances and devices;
(2) Performing one or more of the following on unaccompanied baggage:
(i) Screen unaccompanied baggage more extensively; for example, x-raying from two or more angles;
(ii) Prepare to restrict or suspend handling unaccompanied baggage; or
(iii) Refuse to accept unaccompanied baggage;
(3) Being prepared to cooperate with responders and facilities;
(4) Granting access to only those responding to the security incident or threat thereof;
(5) Suspending access to the facility;
(6) Suspending cargo operations;
(7) Evacuating the facility;
(8) Restricting pedestrian or vehicular movement on the grounds of the facility; or
(9) Increasing security patrols within the facility.
(a)
(1) Prevent or deter unauthorized access;
(2) Protect persons authorized to be in the facility;
(3) Protect the facility;
(4) Protect vessels using and serving the facility;
(5) Protect sensitive security areas within the facility;
(6) Protect security and surveillance equipment and systems; and
(7) Protect cargo and vessel stores from tampering.
(b)
(1) Shore areas immediately adjacent to each vessel moored at the facility;
(2) Areas containing sensitive security information, including cargo documentation;
(3) Areas containing security and surveillance equipment and systems and their controls, and lighting system controls; and
(4) Areas containing critical facility infrastructure, including:
(i) Water supplies;
(ii) Telecommunications;
(iii) Electrical system; and
(iv) Access points for ventilation and air-conditioning systems;
(5) Manufacturing or processing areas and control rooms;
(6) Locations in the facility where access by vehicles and personnel should be restricted;
(7) Areas designated for loading, unloading or storage of cargo and stores; and
(8) Areas containing cargo consisting of dangerous goods or hazardous substances, including certain dangerous cargoes.
(c) The owner or operator must ensure that all restricted areas have clearly established security measures to:
(1) Identify which facility personnel are authorized to have access;
(2) Determine which persons other than facility personnel are authorized to have access;
(3) Determine the conditions under which that access may take place;
(4) Define the extent of any restricted area;
(5) Define the times when access restrictions apply;
(6) Clearly mark all restricted areas and indicate that access to the area is restricted and that unauthorized presence within the area constitutes a breach of security;
(7) Control the entry, parking, loading and unloading of vehicles;
(8) Control the movement and storage of cargo and vessel stores; and
(9) Control unaccompanied baggage or personal effects.
(d)
(1) Restricting access to only authorized personnel;
(2) Securing all access points not actively used and providing physical
(3) Assigning personnel to control access to restricted areas;
(4) Verifying the identification and authorization of all persons and all vehicles seeking entry;
(5) Patrolling or monitoring the perimeter of restricted areas;
(6) Using security personnel, automatic intrusion detection devices, surveillance equipment, or surveillance systems to detect unauthorized entry or movement within restricted areas;
(7) Directing the parking, loading, and unloading of vehicles within a restricted area;
(8) Controlling unaccompanied baggage and or personal effects after screening;
(9) Designating restricted areas for performing inspections of cargo and vessel stores while awaiting loading; and
(10) Designating temporary restricted areas to accommodate facility operations. If temporary restricted areas are designated, the FSP must include a requirement to conduct a security sweep of the designated temporary restricted area both before and after the area has been established.
(e)
(1) Increasing the intensity and frequency of monitoring and access controls on existing restricted access areas;
(2) Enhancing the effectiveness of the barriers or fencing surrounding restricted areas, by the use of patrols or automatic intrusion detection devices;
(3) Reducing the number of access points to restricted areas, and enhancing the controls applied at the remaining accesses;
(4) Restricting parking adjacent to vessels;
(5) Further restricting access to the restricted areas and movements and storage within them;
(6) Using continuously monitored and recorded surveillance equipment;
(7) Enhancing the number and frequency of patrols, including waterborne patrols undertaken on the boundaries of the restricted areas and within the areas; or
(8) Establishing and restricting access to areas adjacent to the restricted areas.
(f)
(1) Restricting access to additional areas;
(2) Prohibiting access to restricted areas, or
(3) Searching restricted areas as part of a security sweep of all or part of the facility.
(a)
(1) Deter tampering;
(2) Prevent cargo that is not meant for carriage from being accepted and stored at the facility;
(3) Identify cargo that is approved for loading onto vessels interfacing with the facility;
(4) Include cargo control procedures at access points to the facility;
(5) Identify cargo that is accepted for temporary storage in a restricted area while awaiting loading or pick up;
(6) Restrict the entry of cargo to the facility that does not have a confirmed date for loading, as appropriate;
(7) Ensure the release of cargo only to the carrier specified in the cargo documentation;
(8) Coordinate security measures with the shipper or other responsible party in accordance with an established agreement and procedures;
(9) Create, update, and maintain a continuous inventory, including location, of all dangerous goods or hazardous substances from receipt to delivery within the facility, giving the location of those dangerous goods or hazardous substances; and
(10) Be able to check cargo entering the facility for dangerous substances and devices at the rate specified in the approved Facility Security Plan (FSP). Means to check cargo include:
(i) Visual examination;
(ii) Physical examination;
(iii) Detection devices, such as scanners; or
(iv) Canines.
(b)
(1) Routinely check cargo, cargo transport units, and cargo storage areas within the facility prior to, and during, cargo handling operations to deter tampering;
(2) Check that cargo, containers, or other cargo transport units entering the facility match the delivery note or equivalent cargo documentation;
(3) Screen vehicles; and
(4) Check seals and other methods used to prevent tampering upon entering the facility and upon storage within the facility.
(c)
(1) Conducting check of cargo, containers or other cargo transport units, and cargo storage areas within the port facility for dangerous substances and devices to the facility and vessel;
(2) Intensifying checks, as appropriate, to ensure that only the documented cargo enters the facility, is temporarily stored there, and then loaded onto the vessel;
(3) Intensifying the screening of vehicles;
(4) Increasing frequency and detail in checking of seals and other methods used to prevent tampering;
(5) Segregating inbound cargo, outbound cargo, and vessel stores;
(6) Increasing the frequency and intensity of visual and physical inspections; or
(7) Limiting the number of locations where dangerous goods and hazardous substances, including certain dangerous cargoes, can be stored.
(d)
(1) Restricting or suspending cargo movements or operations within all or part of the facility or specific vessels;
(2) Being prepared to cooperate with responders and vessels; or
(3) Verifying the inventory and location of any dangerous goods and hazardous substances, including certain dangerous cargoes, held within the facility and their location.
(a)
(1) Check vessel stores for package integrity;
(2) Prevent vessel stores from being accepted without inspection;
(3) Deter tampering;
(4) For vessels that routinely use a facility, establish and execute standing arrangements between the vessel, its suppliers, and a facility regarding notification and the timing of deliveries and their documentation; and
(5) Check vessel stores by the following means:
(i) Visual examination;
(ii) Physical examination;
(iii) Detection devices, such as scanners; or
(iv) Canines.
(b)
(1) Screen vessel stores at the rate specified in the approved Facility Security Plan (FSP);
(2) Require advance notification of vessel stores or bunkers delivery, including a list of stores, delivery vehicle driver information, and vehicle registration information;
(3) Screen delivery vehicles at the frequencies specified in the approved FSP; and
(4) Escort delivery vehicles within the facility at the rate specified by the approved FSP.
(c)
(1) Detailed screening of vessel stores;
(2) Detailed screening of all delivery vehicles;
(3) Coordinating with vessel personnel to check the order against the delivery note prior to entry to the facility;
(4) Ensuring delivery vehicles are escorted within the facility; or
(5) Restricting or prohibiting the entry of vessel stores that will not leave the facility within a specified period.
(d)
(1) Checking all vessel stores more extensively;
(2) Restricting or suspending delivery of vessel stores; or
(3) Refusing to accept vessel stores on the facility.
(a)
(1) Facility and its approaches, on land and water;
(2) Restricted areas within the facility; and
(3) Vessels at the facility and areas surrounding the vessels.
(b)
(1) When automatic intrusion-detection devices are used, activates an audible or visual alarm, or both, at a location that is continuously attended or monitored;
(2) Is able to function continually, including consideration of the possible effects of weather or of a power disruption;
(3) Monitors the facility area, including shore and waterside access to it;
(4) Monitors access points, barriers and restricted areas;
(5) Monitors access and movements adjacent to vessels using the facility, including augmentation of lighting provided by the vessel itself; and
(6) Limits lighting effects, such as glare, and their impact on safety, navigation, and other security activities.
(c)
(1) Increasing the coverage and intensity of surveillance equipment, including the provision of additional surveillance coverage;
(2) Increasing the frequency of foot, vehicle or waterborne patrols;
(3) Assigning additional security personnel to monitor and patrol; or
(4) Increasing the coverage and intensity of lighting, including the provision of additional lighting and coverage.
(d)
(1) Switching on all lighting within, or illuminating the vicinity of, the facility;
(2) Switching on all surveillance equipment capable of recording activities within or adjacent to the facility;
(3) Maximizing the length of time such surveillance equipment can continue to record; or
(4) Complying with the instructions issued by those responding to the security incident.
For each MARSEC Level, the facility owner or operator must ensure the Facility Security Officer and facility security personnel are able to:
(a) Respond to security threats or breaches of security and maintain critical facility and vessel-to-facility interface operations;
(b) Evacuate the facility in case of security threats or breaches of security;
(c) Report security incidents as required in § 101.305 of this subchapter;
(d) Brief all facility personnel on possible threats and the need for vigilance, soliciting their assistance in reporting suspicious persons, objects, or activities; and
(e) Secure non-critical operations in order to focus response on critical operations.
(a) At MARSEC Level 1, the owner or operator of a passenger or ferry facility must ensure, in coordination with a vessel moored at the facility, that the following security measures are implemented in addition to the requirements of this part:
(1) In a facility with no public access area designated under § 105.106, establish separate areas to segregate unchecked persons and personal effects from checked persons and personal effects;
(2) Ensure that a defined percentage of vehicles to be loaded aboard are
(3) Ensure that all unaccompanied vehicles to be loaded on passenger vessels are screened prior to loading;
(4) Deny passenger access to restricted areas unless supervised by facility security personnel; and
(5) In a facility with a public access area designated under § 105.106, provide sufficient security personnel to monitor all persons within the area and conduct screening of persons and personal effects, as needed.
(b) At MARSEC Level 2, in addition to the requirements for MARSEC Level 1, the owner or operator of a passenger or ferry facility with no public access area designated under § 105.106 must ensure screening of additional passengers, baggage, and vehicles prior to boarding the vessel as specified in the approved FSP and Declaration of Security.
(c) At MARSEC Level 3, in addition to the requirements for MARSEC Level 1 and MARSEC Level 2 and in coordination with the vessel moored at the facility, the owner or operator of a passenger or ferry facility with no public access area designated under § 105.106 must ensure the following security measures:
(1) Screen and identify all persons;
(2) Screen all baggage; and
(3) Assign additional security personnel and patrols.
At all MARSEC Levels, in coordination with a vessel moored at the facility, the facility owner or operator must ensure the following security measures:
(a) Screen all persons, baggage, and personal effects for dangerous substances and devices;
(b) Check the identification of all persons seeking to board the vessel. This includes confirming the reason for boarding by examining joining instructions, passenger tickets, boarding passes, government identification or visitor badges, or work orders;
(c) Designate holding, waiting, or embarkation areas to segregate screened persons and their personal effects awaiting embarkation from unscreened persons and their personal effects;
(d) Provide additional security personnel to designated holding, waiting, or embarkation areas; and
(e) Deny passenger access to restricted areas unless supervised by facility security personnel.
(a) At all MARSEC Levels, owners or operators of CDC facilities must ensure the implementation of the following security measures in addition to the requirements of this part:
(1) Escort all visitors, contractors, vendors, and other non-facility employees at all times while on the facility, if access identification is not provided. Escort provisions do not apply to prearranged cargo deliveries;
(2) Control the parking, loading, and unloading of vehicles within a facility;
(3) Require security personnel to record or report their presence at key points during their patrols;
(4) Search unmanned or unmonitored waterfront areas for dangerous substances and devices prior to a vessel's arrival at the facility; and
(5) Provide an alternate or independent power source for security and communications systems.
(b) At MARSEC Level 2, in addition to the requirements for MARSEC Level 1, owners or operators of CDC facilities must ensure the implementation of the following security measures:
(1) Release cargo only in the presence of the Facility Security Officer (FSO) or a designated representative of the FSO; and
(2) Continuously guard or patrol restricted areas.
(c) At MARSEC Level 3, in addition to the requirements for MARSEC Level 1 and MARSEC Level 2, owners or operators of CDC facilities must ensure the facilities are continuously guarded and restricted areas are patrolled.
(a) At MARSEC Level 1, in addition to the requirements of this part, an owner or operator of a barge fleeting facility must ensure the implementation of the following security measures:
(1) Designate an area within the fleeting facility to segregate those barges carrying Certain Dangerous Cargoes and cargoes listed in 46 CFR, subchapters D and O of chapter I, title 46, Code of Federal Regulations or Certain Dangerous Cargoes from all other barges in the fleeting facility;
(2) Maintain a current list of vessels and cargoes in the designated restricted area; and
(3) Ensure that at least one towing vessel is available to service the fleeting facility for every 100 barges within the facility.
(b) At MARSEC Level 2, in addition to the requirements of this part and MARSEC Level 1 requirements, an owner or operator of a barge fleeting facility must ensure security personnel are assigned to monitor or patrol the designated restricted area within the barge fleeting facility.
(c) At MARSEC Level 3, in addition to the requirements of this part and MARSEC Level 2 requirements, an owner or operator of a barge fleeting facility must ensure that both land and waterside perimeters of the designated restricted area within the barge fleeting facility are continuously monitored or patrolled.
(a) The Facility Security Assessment (FSA) is a written document that is based on the collection of background information, the completion of an on-scene survey and an analysis of that information.
(b) A common FSA may be conducted for more than one similar facility provided the FSA reflects any facility-specific characteristics that are unique.
(c) Third parties may be used in any aspect of the FSA if they have the appropriate skills and if the Facility Security Officer (FSO) reviews and accepts their work.
(d) Those involved in a FSA must be able to draw upon expert assistance in the following areas, as appropriate:
(1) Knowledge of current security threats and patterns;
(2) Recognition and detection of dangerous substances and devices;
(3) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(4) Techniques used to circumvent security measures;
(5) Methods used to cause a security incident;
(6) Effects of dangerous substances and devices on structures and facility services;
(7) Facility security requirements;
(8) Facility and vessel interface business practices;
(9) Contingency planning, emergency preparedness, and response;
(10) Physical security requirements;
(11) Radio and telecommunications systems, including computer systems and networks;
(12) Marine or civil engineering; and
(13) Facility and vessel operations.
(a)
(1) The general layout of the facility, including:
(i) The location of each active and inactive access point to the facility;
(ii) The number, reliability, and security duties of facility personnel;
(iii) Security doors, barriers, and lighting;
(iv) The location of restricted areas;
(v) The emergency and stand-by equipment available to maintain essential services;
(vi) The maintenance equipment, cargo spaces, storage areas, and unaccompanied baggage storage;
(vii) Location of escape and evacuation routes and assembly stations; and
(viii) Existing security and safety equipment for protection of personnel and visitors;
(2) Response procedures for fire or other emergency conditions;
(3) Procedures for monitoring facility and vessel personnel, vendors, repair technicians, and dock workers;
(4) Existing contracts with private security companies and existing agreements with local or municipal agencies;
(5) Procedures for controlling keys and other access prevention systems;
(6) Procedures for cargo and vessel stores operations;
(7) Response capability to security incidents;
(8) Threat assessments, including the purpose and methodology of the assessment, for the port in which the facility is located or at which passengers embark or disembark;
(9) Previous reports on security needs; and
(10) Any other existing security procedures and systems, equipment, communications, and facility personnel.
(b)
(c)
(1) Each vulnerability found during the on-scene survey including but not limited to:
(i) Waterside and shore-side access to the facility and vessel berthing at the facility;
(ii) Structural integrity of the piers, facilities, and associated structures;
(iii) Existing security measures and procedures, including identification systems;
(iv) Existing security measures and procedures relating to services and utilities;
(v) Measures to protect radio and telecommunication equipment, including computer systems and networks;
(vi) Adjacent areas that may be exploited during or for an attack;
(vii) Areas that may, if damaged or used for illicit observation, pose a risk to people, property, or operations within the facility;
(viii) Existing agreements with private security companies providing waterside and shore-side security services;
(ix) Any conflicting policies between safety and security measures and procedures;
(x) Any conflicting facility operations and security duty assignments;
(xi) Any enforcement and personnel constraints;
(xii) Any deficiencies identified during daily operations or training and drills; and
(xiii) Any deficiencies identified following security incidents or alerts, the report of security concerns, the exercise of control measures, or audits;
(2) Possible security threats, including but not limited to:
(i) Damage to or destruction of the facility or of a vessel moored at the facility;
(ii) Hijacking or seizure of a vessel moored at the facility or of persons on board;
(iii) Tampering with cargo, essential equipment or systems, or stores of a vessel moored at the facility;
(iv) Unauthorized access or use including the presence of stowaways;
(v) Smuggling dangerous substances and devices to the facility;
(vi) Use of a vessel moored at the facility to carry those intending to cause a security incident and their equipment;
(vii) Use of a vessel moored at the facility as a weapon or as a means to cause damage or destruction;
(viii) Blockage of entrances, locks, and approaches; and
(ix) Nuclear, biological, radiological, explosive, and chemical attack;
(3) Threat assessments by Government agencies;
(4) Vulnerabilities, including human factors, in the facility's infrastructure, policies and procedures;
(5) Any particular aspects of the facility, including the vessels using the facility, which make it likely to be the target of an attack;
(6) Likely consequences in terms of loss of life, damage to property, and economic disruption, including disruption to transportation systems, of an attack on or at the facility; and
(7) Locations where access restrictions or prohibitions will be applied for each MARSEC Level.
(d)
(i) A summary of how the on-scene survey was conducted;
(ii) A description of existing security measures, including inspection, control and monitoring equipment, personnel identification documents and communication, alarm, lighting, access control, and similar systems;
(iii) A description of each vulnerability found during the on-scene survey;
(iv) A description of security measures that could be used to address each vulnerability;
(v) A list of the key facility operations that are important to protect; and
(vi) A list of identified weaknesses, including human factors, in the infrastructure, policies, and procedures of the facility.
(2) A FSA report must describe the following elements within the facility:
(i) Physical security;
(ii) Structural integrity;
(iii) Personnel protection systems;
(iv) Procedural policies;
(v) Radio and telecommunication systems, including computer systems and networks;
(vi) Relevant transportation infrastructure; and
(vii) Utilities.
(a) A completed FSA report must be submitted with the Facility Security Plan required in § 105.415 of this part.
(b) A facility owner or operator may generate and submit a report that contains the Facility Security Assessment for more than one facility subject to this part, to the extent that they share similarities in design and operations, if authorized and approved by the cognizant COTP.
(a) The Facility Security Officer (FSO) must ensure a Facility Security Plan (FSP) is developed and implemented for each facility for which he or she is designated as FSO. The FSP:
(1) Must identify the FSO by name and position, and provide 24-hour contact information;
(2) Must be written in English;
(3) Must address each vulnerability identified in the Facility Security Assessment (FSA);
(4) Must describe security measures for each MARSEC Level; and
(5) May cover more than one facility to the extent that they share similarities in design and operations, if authorized and approved by the cognizant COTP.
(b) The FSP must be submitted for approval to the cognizant COTP in a written or electronic format. Format for submitting the FSP electronically can be found at
(c) The FSP is sensitive security information and must be protected in accordance with 49 CFR part 1520.
(d) If the FSP is kept in an electronic format, procedures must be in place to prevent its unauthorized deletion, destruction, or amendment.
(a) A facility owner or operator must ensure that the FSP consists of the individual sections listed in this paragraph (a). If the FSP does not follow the order as it appears in the list, the facility owner or operator must ensure that the FSP contains an index identifying the location of each of the following sections:
(1) Security administration and organization of the facility;
(2) Personnel training;
(3) Drills and exercises;
(4) Records and documentation;
(5) Response to change in MARSEC Level;
(6) Procedures for interfacing with vessels;
(7) Declaration of Security (DoS);
(8) Communications;
(9) Security systems and equipment maintenance;
(10) Security measures for access control, including designated public access areas;
(11) Security measures for restricted areas;
(12) Security measures for handling cargo;
(13) Security measures for delivery of vessel stores and bunkers;
(14) Security measures for monitoring;
(15) Security incident procedures;
(16) Audits and security plan amendments;
(17) Facility Security Assessment (FSA) report; and
(18) Facility Vulnerability and Security Measures Summary (Form CG-6025) in appendix A to part 105-Facility Vulnerability and Security Measures Summary (CG-6025).
(b) The facility owner or operator must ensure that the FSP describes in detail how each of the individual requirements of subpart B of this part will be met.
(c) The Facility Vulnerability and Security Measures Summary (Form CG-6025) must be completed using information in the FSA concerning identified vulnerabilities and information in the FSP concerning security measures in mitigation of these vulnerabilities.
(a) On or before December 29, 2003, each facility owner or operator must either:
(1) Submit one copy of their Facility Security Plan (FSP) for review and approval to the cognizant COTP; or
(2) If implementing a Coast Guard approved Alternative Security Program, meet the requirements in § 101.120(b) of this subchapter.
(b) Facilities constructed on or after July 1, 2004, must comply with the requirements in paragraph (a) of this section 60 days prior to beginning operations.
(c) The cognizant COTP will examine each submission for compliance with this part and either:
(1) Approve it and specify any conditions of approval, returning to the submitter a letter stating its acceptance and any conditions, or
(2) Disapprove it, returning a copy to the submitter with a brief statement of the reasons for disapproval.
(d) An FSP may be submitted and approved to cover more than one facility where they share similarities in design and operations, if authorized and approved by the cognizant COTP.
(e) Each facility owner or operator that submits one FSP to cover two or more facilities of similar design and operation must address facility-specific information that includes the design and operational characteristics of each facility and must complete a separate Facility Vulnerability and Security Measures Summary (Form CG-6025), in appendix A to part 105—Facility Vulnerability and Security Measures Summary (CG-6025), for each facility covered by the plan.
(f) A FSP that is approved by the cognizant COTP is valid for five years from the date of its approval.
(a)
(i) The facility owner or operator; or
(ii) The cognizant COTP upon a determination that an amendment is needed to maintain the facility's security. The cognizant COTP, who will give the facility owner or operator written notice and request that the facility owner or operator propose amendments addressing any matters specified in the notice. The facility owner or operator will have at least 60 days to submit its proposed amendments. Until amendments are approved, the facility owner or operator shall ensure temporary security measures are implemented to the satisfaction of the COTP.
(2) Proposed amendments must be submitted to the cognizant COTP. If initiated by the facility owner or operator, the proposed amendment must be submitted at least 30 days before the amendment is to take effect unless the cognizant COTP allows a shorter period. The cognizant COTP will approve or disapprove the proposed amendment in accordance with § 105.415 of this subpart.
(3) If there is a change in the owner or operator, the Facility Security Officer (FSO) must amend the Facility Security Plan (FSP) to include the name and contact information of the new facility owner or operator and submit the affected portion of the FSP for review and approval in accordance with § 105.415 if this subpart.
(b)
(2) The FSP must be audited if there is a change in the facility's ownership or operator, or if there have been modifications to the facility, including but not limited to physical structure, emergency response procedures, security measures, or operations.
(3) Auditing the FSP as a result of modifications to the facility may be limited to those sections of the FSP affected by the facility modifications.
(4) Unless impracticable due to the size and nature of the company or the facility, personnel conducting internal audits of the security measures specified in the FSP or evaluating its implementation must:
(i) Have knowledge of methods for conducting audits and inspections, and security, control, and monitoring techniques;
(ii) Not have regularly assigned security duties; and
(iii) Be independent of any security measures being audited.
(5) If the results of an audit require amendment of either the FSA or FSP, the FSO must submit, in accordance
Coast Guard, DHS.
Temporary interim rule with request for comments and notice of meeting.
This interim rule provides security measures for mobile offshore drilling units (MODUs) not subject to the International Convention for the Safety of Life at Sea, 1974, (SOLAS) and certain fixed and floating facilities on the Outer Continental Shelf (OCS) other than deepwater ports. For the purpose of this part, non-SOLAS MODUs and certain fixed and floating facilities on the OCS are collectively referred to as OCS facilities. This rule requires the owners or operators of OCS facilities to designate security officers, develop security plans based on security assessments, implement security measures specific to the OCS facility's operation and comply with Maritime Security Levels. This interim rule is one of six interim rules in today's
(1) Electronically to the Docket Management System Web site at
(2) By mail to the Docket Management Facility (USCG-2003-14759), U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001;
(3) By fax to the Docket Management Facility at 202-493-2251; or
(4) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
You must also mail comments on collection of information to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.
If you have questions on this rule, call Lieutenant Greg Versaw by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or electronic mail
Due to the short timeframe given to implement these National Maritime Transportation Security initiatives, as directed by the Maritime Transportation Security Act (MTSA) of 2002 (MTSA, Pub. L. 107-295, 116 STAT. 2064), and to ensure all comments are in the public venue for these important rulemakings, we are not accepting comments containing protected information for these interim rules. We request you submit comments, as explained in the Request for Comments section below, and discuss your concerns or support in a manner that is not security sensitive. We also request that you not submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
We encourage you to participate in this rulemaking by submitting comments and related material. Your comments will be considered for the final rule we plan to issue before November 25, 2003, to replace this interim rule. If you choose to comment on this rule, please include your name and address, identify the specific docket number for this interim rule (USCG-2003-14759), indicate the specific heading of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under
We will hold a public meeting on July 23, 2003, in Washington, DC at the
We did not publish a notice of proposed rulemaking (NPRM) for this rulemaking and are making this interim rule effective upon publication. Section 102(d)(1) of the MTSA requires the publication of an interim rule as soon as practicable without regard to the provisions of chapter 5 of title 5, U.S. Code (Administrative Procedure Act). The Coast Guard finds that harmonization of U.S. regulations with maritime security measures adopted by the International Maritime Organization (IMO) in December 2002, and the need to institute measures for the protection of U.S. maritime security as soon as practicable, furnish good cause for this interim rule to take effect immediately under both the Administrative Procedure Act and section 808 of the Congressional Review Act.
A summary of the Coast Guard's regulatory initiatives for maritime security can be found under the
For a discussion of comments on OCS facilities at the public meetings and in the docket, see the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
This interim rule regulates the owners and operators of OCS facilities to provide security to these OCS facilities and to other vessels with which an OCS facility interfaces. The interim rule adds new 33 CFR part 106, OCS Facility Security, as part of 33 CFR, Chapter I, subchapter H, Maritime Security. A general description of the process used in developing subchapter H and its component parts appears in the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792).
This interim rule applies to Certificated Mobile Offshore Drilling Units (MODUs) that are not subject to International Convention for Safety of Life at Sea, 1974, (SOLAS) and fixed or floating platforms operating on the Outer Continental Shelf that host more than 150 persons for 12 hours or more during each 24-hour period continuously for 30 days or more, or produce more than 100,000 barrels of oil per day, and/or produce more than 200 million cubic feet of natural gas per day. OCS facilities that do not meet these characteristics may still be required to conduct a Facility Security Assessment, develop a Facility Security Plan, and implement certain security measures if the cognizant Coast Guard District Commander makes that determination. That determination is made on a case-by-case basis, based upon unique local conditions, specific intelligence information, or other identifiable and articulable risk factors that confirm such actions are necessary and appropriate to ensure an adequate level of security. This requirement would be issued in a Maritime Security Directive. This interim rule does not apply to deepwater ports.
The MTSA and the International Ship and Port Facility Security (ISPS) Code use different terms to define similar, if not identical, persons or things. These differing terms sometimes match up with the terms used in subchapter H, but sometimes they do not. For a table of the terms used in subchapter H and their related terms in the MTSA and the ISPS Code, see the
The purpose of this rulemaking is to require certain OCS facilities to perform security assessments, develop security plans, and implement security measures and procedures to reduce the risk of and to mitigate the results of an act that threatens the security of the OCS facility, the crew, or the public. This rulemaking combines international requirements and existing domestic policy, and is published as a part of a new subchapter on maritime security. The MTSA mandates that OCS facilities conduct security assessments and develop security plans, submit these plans within 6 months of publication of this interim rule. It also mandates that each OCS facility shall be in compliance with its approved security plans within 12 months of the publication of this interim rule.
Part 106 consists of four subparts: subpart A (General), subpart B (Security Requirements), subpart C (OCS Facility Security Assessment), and subpart D (OCS Facility Security Plan). The requirements discussed in part 106 are consistent with similar requirements in parts 104 and 105 of this subchapter. These interim rules include requirements discussed below.
The waiver section of this interim rule establishes procedures for OCS facility owners or operators who wish to be relieved of complying with specific requirements of the interim rule on the grounds that those requirements are unreasonable or unnecessary.
The equivalents section of this interim rule establishes procedures for requesting an equivalency to the requirements of this interim rule. Equivalencies are intended to allow an OCS facility owner or operator to provide an alternative provision or arrangement that provides the same level of security as a specific requirement contained within this part.
The alternatives section of this interim rule allows OCS facility owners or operators to implement an Alternative Security Program that has been reviewed and accepted by the Commandant (G-MP) to meet the requirements of this part. An Alternative Security Program must be comprehensive and must be demonstrated to meet the intent of each section of this part. Owners or operators are required to implement an Alternative Security Program in its entirety to be deemed in compliance with this part.
The appeals section of this interim rule establishes the procedures for OCS facility owners or operators who are aggrieved by, and wish to contest, a Coast Guard decision regarding a matter covered by this interim rule.
The owner or operator of a facility is generally responsible for all requirements imposed by this part. The owner or operator must:
• Ensure the performance of all OCS facility security duties;
• Define the security organizational structure for each OCS facility and provide each person exercising security duties or responsibilities within that structure with the support needed to fulfill those obligations;
• Designate, by name or title, a Company Security Officer and a Facility Security Officer for each OCS facility;
• Ensure that a Facility Security Assessment is conducted;
• Ensure the development and submission for approval of a Facility Security Plan.
• Ensure that the OCS facility operates in compliance with the approved Facility Security Plan;
• Ensure that adequate coordination of security issues takes place between the OCS facility and vessels, including the execution of a Declaration of Security;
• Ensure that security communication is readily available;
• Ensure coordination with and implementation of changes in MARSEC Level; and
• Ensure all breaches of security and security incidents are reported.
This interim rule requires that each OCS facility owner or operator appoint a Company Security Officer, designated in writing, for each OCS facility. The Company Security Officer may be a full-time or collateral position. A Company Security Officer may perform other duties within the owner or operator's organization provided he or she is able to perform the duties and responsibilities required of the Company Security Officer.
The Company Security Officer must have a general knowledge in matters of a range of issues, such as company security administration and organization, relevant laws and regulations, current security threats and patterns, risk assessment methodology, and conducting audits, inspections, and control procedures. The Company Security Officer may delegate his or her duties, but remains responsible for the performance of those duties. The duties of the Company Security Officer include:
• Ensuring that a Facility Security Assessment is carried out;
• Ensuring that a Facility Security Plan is developed, approved, maintained, and implemented;
• Ensuring that the Facility Security Plan is modified when necessary;
• Ensuring that OCS facility security activities are audited and reviewed;
• Ensuring the timely correction of problems identified by audits, reviews, or inspections;
• Ensuring adequate security training; and
• Ensuring communication and cooperation between the OCS facility and vessels.
This interim rule requires that the owner or operator of OCS facilities appoint, and designate in writing, a Facility Security Officer. The Facility Security Officer may be a full-time or collateral position. The Facility Security Officer must have a general knowledge in a range of issues such as security administration and organization, relevant laws and regulations, current security threats and patterns, risk assessment methodology, and conducting audits, inspections, and control procedures. The most important duties a Facility Security Officer must perform include implementing a Facility Security Plan, ensuring that adequate training is provided to OCS facility personnel; ensuring that the OCS facility operates in accordance with the plan and in continuous compliance with part 106; and periodically auditing and updating the Facility Security Assessment and Facility Security Plan. The Facility Security Officer may assign security duties to other OCS facility personnel; however, the Facility Security Officer remains responsible for these duties.
Required training for OCS facility personnel must be specified in the Facility Security Plan. The Coast Guard will not require specific security training courses for the Facility Security Officer and OCS facility personnel. While formal training may be appropriate, we are not mandating specifics. OCS facility owners or operators must certify that security personnel are, in fact, properly trained to perform their duties. The types of training required must also be consistent with the training requirements described in this part. The Facility Security Officer is also required to ensure that OCS facility security persons possess necessary training to maintain the overall security of the OCS facility.
Exercises are required to ensure the adequacy of the Facility Security Plan and are required to be conducted at least once each calendar year, with no more than 18 months between exercises. Drills, which are smaller in scope than exercises, must be conducted at least every 3 months. Exercises may be OCS facility specific, or as part of a cooperative exercise program. Exercises for security may be combined with other required exercises, as appropriate.
Procedures and/or policies must be developed and implemented to ensure security systems and equipment are tested and operated in accordance with the instructions of the manufacturer and ready for use.
Security measures for specific activities must be scalable in order to provide increasing levels of security at increasing MARSEC levels. An effective security program relies on detailed procedures that clearly indicate the preparation and prevention activities that will occur at each threat level and the organizations, or personnel, who are responsible for carrying out those activities. Security Measures must be developed for the following activities:
• Security measures for access control;
• Security measures for restricted areas;
• Security measures for delivery of stores and industrial supplies; and
• Security measures for monitoring.
This interim rule requires the execution of a Declaration of Security under certain security conditions. A Declaration of Security provides a means for ensuring that critical security concerns are properly addressed prior to a vessel-to-facility interface. Security must be properly addressed by delineating responsibilities for security arrangements and procedures between a vessel and the OCS facility. This obligation is similar to the existing U.S. practice for vessel-to-facility oil transfer procedures.
Only certain vessels carrying Certain Dangerous Cargoes, in bulk, will complete a Declaration of Security for every evolution regardless of the MARSEC Level. At MARSEC Levels 2 and 3, all vessels and OCS facilities would need to complete the Declaration of Security.
OCS facilities that frequently receive the same vessel may execute a continuing Declaration of Security—a single Declaration of Security for multiple visits.
Each Declaration of Security must state the security activities for which the OCS facility and vessel are responsible during the vessel-to-facility interface.
Each OCS facility must develop security incident procedures for responding to security incidents. The security incident procedures must explain the OCS facility's reaction to an emergency, including the notification and coordination with local, State, and federal authorities. The security incident procedures must also explain actions for securing the OCS facility as well as actions for evacuating passengers and crew.
This interim rule requires all appropriate OCS facilities to complete a Facility Security Assessment, which is an essential part of the process of developing and updating the required Facility Security Plan. The Facility Security Assessment is based in part on an on-scene security survey, which details the overall assessment of the OCS facility including any existing security measures, and includes a written report documenting the vulnerabilities and mitigation strategies of the OCS facility. As discussed in the interim rule “Implementation of National Maritime Security Initiatives” (USCG-2003-14792), 33 CFR 101.510, lists the various assessment tools that may be used to meet the risk assessment requirements in the parts 104 through 106 of this subchapter. The assessment tools listed are sufficient to enable the development of the Facility Security Plan. This list is also provided to ensure that the Facility Security Assessment is consistent with other modal assessments. We are working with other agencies to develop assessment tools that are sensitive to the diversity of the national Marine Transportation System to ensure consistent levels of security throughout the entire system. The designated Company Security Officer must conduct the on-scene survey by examining and evaluating existing OCS facility protective measures, procedures, and operations. Using the information obtained in the on-scene survey, the Company Security Officer must ensure the completion of the Facility Security Assessment. The Facility Security Assessment identifies and evaluates, in writing, existing security measures; key OCS facility operations; the likelihood of possible threats to key OCS facility operations; and weaknesses, including human factors in the infrastructure, policies, and procedures of the OCS facility.
The Facility Security Assessment includes, among other things, a written summary of how the assessment was conducted, each vulnerability found during the assessment, and countermeasures that could be used to address each vulnerability. The Facility Security Assessment must be reviewed and updated each time the Facility Security Plan is revised and when the Facility Security Plan is submitted for re-approval every five years
This interim rule requires each OCS facility owner or operator to develop an effective security plan that incorporates detailed preparedness, prevention, and response activities for each MARSEC Level, along with the organizations or personnel responsible for carrying out those activities. The requirements discussed in this part are consistent with the requirements covered in parts 104 and 105 of this subchapter.
The Facility Security Plan is a document, written in English that is prepared in response to the Facility Security Assessment and approved by the Coast Guard. A single Facility Security Plan may cover more than one OCS facility to the extent that they share physical characteristics and operations, if authorized and approved by the cognizant District Commander.
In addition to other things, the Facility Security Plan must respond specifically to any recommendations made by the Facility Security Assessment; must describe, for each MARSEC Level, how the OCS facility will apply the security measures required in these regulations; must detail the organizational structure of security for the OCS facility; must detail the responsibilities of all OCS facility personnel with a security duty; must detail the OCS facility's relationships with the Company, vessels that conduct operations with the OCS facility, and relevant authorities with a security responsibility; must provide for regular audit of the FSP and for its amendment in response to experience or changing circumstances; and must establish the procedures needed to assess the continuing effectiveness of security procedures and all security-related equipment and systems, including procedures for identifying and responding to equipment or systems failure or malfunction.
The Facility Security Plan, including the Facility Security Assessment report must, be submitted to and reviewed by the cognizant District Commander. Once the cognizant District Commander finds that the plan meets the security requirements in part 106, the submitter will receive confirmation via an approval letter.
If the cognizant District Commander requires more time than is indicated in the requirements of the interim rule to review a submitted Facility Security Plan, the cognizant District Commander may return to the submitter a written acknowledgement stating that the Coast Guard is currently reviewing the Facility Security Plan submitted for approval, and that the OCS facility may continue to operate so long as the OCS facility remains in compliance with the submitted Facility Security Plan.
If the cognizant District Commander finds that the FSP does not meet the security requirements, the plan would be returned to the OCS facility with either an approval letter stating conditions of the approval, or a disapproval letter along with an explanation of why the plan does not meet the part 106 requirements.
Security plans must be reviewed by the Coast Guard every time:
• The Facility Security Assessment is altered;
• Failures are identified during an exercise of the Facility Security Plan; and
• There is a change in ownership or operational control of the OCS facility or there are amendments to the Facility Security Plan.
This interim rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and has been reviewed by the Office of Management and Budget under that Order. It requires an assessment of potential costs and benefits under section 6(a)(3) of that Order. It is significant under the regulatory policies and procedures of the Department of Homeland Security. A Regulatory Assessment is available in the docket as indicated under
For the purposes of good business practice or regulations promulgated by other Federal and State agencies, many companies already have spent a substantial amount of money and resources to upgrade and improve security. The costs shown in this assessment do not include security measures these companies have already taken to enhance security.
The Coast Guard realizes that every company engaged in maritime commerce will not implement this interim rule exactly as presented in the
This interim rule will affect about 40 OCS facilities under U.S. jurisdiction, (current and future facilities). These OCS facilities engage in exploring for, developing, or producing oil, natural gas, or mineral resources. To determine the number of OCS facilities, we used data that the Mineral Management Service (MMS) has identified as nationally critical OCS oil and gas infrastructure. These OCS facilities meet or exceed any of the following operational threshold characteristics:
(1) OCS facility hosts more than 150 persons for 12 hours or more in each 24-hour period continuously for 30 days or more;
(2) Production greater than 100,000 (one hundred thousand) barrels of oil per day; or
(3) Production greater than 200,000,000 (two hundred million) cubic feet of natural gas per day.
The estimated cost of complying with the interim rule is Present Value (PV) $37 million (2003-2012, 7 percent discount rate). In the first year of compliance, the cost of security assessments and plans, training, personnel, and paperwork is an estimated $3 million (non-discounted). Following initial implementation, the annual cost of compliance is an estimated $5 million (non-discounted).
Approximately 80 percent of the initial cost of the interim rule is for assigning and establishing Company Security Officers and Facility Security Officers, 12 percent is associated with paperwork creating Facility Security Assessments and Facility Security Plans, and 8 percent of the cost is associated with initial training (not including quarterly drills). Following the first year, approximately 58 percent of the cost is training (including quarterly drills), 42 percent is for Company Security Officers and Facility Security Officers, and less than 1 percent is associated with paperwork. Annual training (including quarterly drills) is the primary cost driver of OCS facility security.
We estimated approximately 3,200 burden hours for paperwork during the first year of compliance (40 hours for each Facility Security Assessment and each Facility Security Plan). We estimated approximately 160 burden hours annually following full implementation of the interim rule to update Facility Security Assessments and Facility Security Plans.
We estimated the cost of this interim rule to be minimal in comparison to vessel and non-OCS facility security implementation. This interim rule includes only personnel, training, and paperwork costs for the affected OCS facility population. We assume the industry is adequately prepared with equipment suited to be used for security purposes (lights, radios, communications), therefore no security equipment installation, upgrades, or maintenance will be required for this interim rule.
This interim rule is one of six interim rules that implement national maritime security initiatives concerning General Provisions, Area Maritime Security (ports), Vessels, Facilities, OCS Facilities, and AIS. The Coast Guard used the National Risk Assessment Tool (N-RAT) to assess benefits that would result from increased security for vessels, facilities, OCS facilities, and ports. The N-RAT considers threat, vulnerability, and consequences for several maritime entities in various security-related scenarios. For a more detailed discussion on the N-RAT and how we employed this tool, refer to
The Coast Guard recognized that the interim rules are a “family” of rules that will reinforce and support one another in their implementation. The Coast Guard has ensured, however, that risk reduction that is credited in one rulemaking is not also credited in another. For a more detailed discussion on the benefit assessment and how the Coast Guard addressed the potential to double-count the risk reduced, refer to
The Coast Guard determined annual risk points reduced for each of the six interim rules using the N-RAT. The benefits are apportioned among the Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in Table 1, the implementation of OCS Facility Security Plans for the affected population reduces 13,288 risk points annually through 2012. The benefits attributable for part 101, General Provisions, were not considered separately since it is an overarching section for all the parts.
Once we determined the annual risk points reduced, we discounted these estimates to their present value (7 percent discount rate, 2003-2012) so that they could be compared to the costs. We presented the cost effectiveness, or dollars per risk point reduced, in two ways: First, we compared the first-year cost and first-
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard has considered whether this interim 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. This interim rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this interim rule is exempt, the Coast Guard has reviewed it for potential economic impacts on small entities. An Initial Regulatory Flexibility Analysis discussing the impact of this interim rule on small entities is available in the docket where indicated under
There are approximately 40 total current and future OCS facilities owned by 5 large companies that will be affected by this interim rule. Depending on how the corporate headquarters' operation is classified and whether it is oil or gas specific, these companies are generally classified under the North American Industry Classification System (NAICS) code 211111 or 221210. According to the Small Business Administration guidelines for these industries, a company with less than 500 total corporate employees is considered a small entity. The entities affected by this interim rule do not qualify as small entities because all of them have more than 500 employees.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this interim rule will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this interim rule will have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under
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 interim rule so that they can better evaluate its effects on them and participate in the rulemaking. If the interim rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Lieutenant Greg Versaw, Coast Guard by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or electronic mail
This interim rule calls for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other, similar actions. The title and description of the information collections, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection. This interim rule modifies an existing OMB-approved collection—1625-0077 (formerly 2115-0551). A summary of the revised collection follows.
Initial OCS Facility Security Assessments and OCS Facility Security Plans occur the first year the OCS facility is online with updates during each following year.
Depending on the OCS facility there may be additional requirements and reporting frequencies.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this interim rule to the Office of Management and Budget (OMB) for its review of the collection of information. Due to the circumstances surrounding this temporary rule, we asked for “emergency processing” of our request. We received OMB approval for the collection of information on June 16, 2003. It is valid until December 31, 2003.
We ask for public comment on the collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.
If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under
You need not respond to a collection of information unless it displays a currently valid control number from OMB. We received OMB approval for the collection of information on June 16, 2003. It is valid until December 31, 2003.
An interim rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. This part applies to facilities that are on the OCS, outside the jurisdiction of State waters or submerged lands. Nothing in this part will have a substantial direct effect on State or local governments, nor will a substantial direct cost of compliance be imposed on them. We have analyzed this interim rule under Executive Order 13132 and have determined that it therefore does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. This interim rule is exempted from assessing the effects of the regulatory action as required by the Act because it is necessary for the national security of the United States (2 U.S.C. 1503(5)).
This interim rule will 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 interim 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 interim rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. While this interim rule is an economically significant rule, it does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This interim 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 tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this interim 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. Although it is a “significant regulatory action” under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This interim rule has a positive effect on the supply, distribution, and use of energy. The interim rule provides for security assessments, plans, procedures, and standards, which will prove beneficial for the supply, distribution, and use of energy at increased levels of maritime security.
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The Act also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We have assessed the potential effect of this interim rule and have determined that it would likely create obstacles to the foreign commerce of the United States. However, because these regulations are being put in place in order to further a legitimate domestic objective, to increase the security of the United States, any obstacles created by the
We have considered the environmental impact of this interim rule and concluded that under figure 2-1, paragraph (34)(a) and (34)(c), of Commandant Instruction M16475.lD, this interim rule is categorically excluded from further environmental documentation. This interim rule concerns security assessments, plans, training for personnel, and the establishment of security positions that will contribute to a higher level of marine safety and security for OCS facilities extracting oil or gas. A “Categorical Exclusion Determination” is available in the docket where indicated under
This rulemaking will not significantly impact the coastal zone. Further, the rulemaking and the execution of this interim rule will be done in conjunction with appropriate State coastal authorities. The Coast Guard will therefore, comply with the requirements of the Coastal Zone Management Act while furthering its intent to protect the coastal zone.
Facilities, Maritime security, Outer Continental Shelf, Reporting and recordkeeping requirements, Security measures.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.
Except as specifically stated in this subpart, the definitions in part 101 of this subchapter apply to this part.
The requirements in this part apply to owners and operators of any fixed or floating facility, including MODUs not subject to part 104 of this subchapter, operating on the Outer Continental Shelf (OCS) of the United States for the purposes of engaging in the exploration, development, or production of oil, natural gas, or mineral resources that are regulated by 33 CFR subchapter N, that meet the following operating conditions:
(a) Hosts more than 150 persons for 12 hours or more in each 24-hour period continuously for 30 days or more;
(b) Produces greater than 100,000 barrels of oil per day; or
(c) Produces greater than 200 million cubic feet of natural gas per day.
(a) On or before December 29, 2003, each Outer Continental Shelf (OCS) facility owner or operator must submit for each OCS facility a Facility Security Plan (FSP) described in subpart D of this part for review and approval to the cognizant District Commander.
(b) On or before June 25, 2004, each OCS facility owner or operator must be operating in compliance with this part.
(c) OCS facilities built on or after July 1, 2004, must submit for approval an FSP 60 days prior to beginning operations.
Each OCS facility owner or operator subject to this part must ensure that no later than July 1, 2004, that copies of the following documentation are available at the OCS facility and are made available to the Coast Guard upon request:
(a) The approved Facility Security Plan (FSP) and any approved revisions or amendments thereto, and a letter of approval from the cognizant District Commander dated within the last 5 years;
(b) The FSP submitted for approval and current written acknowledgment from the cognizant District Commander, stating that the Coast Guard is currently reviewing the FSP submitted for approval and that the OCS facility may continue to operate so long as the OCS facility remains in compliance with the submitted FSP; or
(c) For OCS facilities operating under a Coast Guard-approved Alternative Security Program as provided in § 106.135, a copy of the Alternative Security Program the OCS facility is using and a letter signed by the OCS facility owner or operator, stating which Alternative Security Program the OCS facility is using and certifying that the OCS facility is in full compliance with that program.
When an OCS facility is not in compliance with the requirements of this part, the OCS facility owner or operator must notify the cognizant District Commander and request a waiver to continue operations.
Any OCS facility owner or operator may apply for a waiver of any requirement of this part that the OCS facility owner or operator considers unnecessary in light of the nature or operating conditions of the OCS facility. A request for a waiver must be submitted in writing with justification to the cognizant District Commander. The cognizant District Commander may require the OCS facility owner or operator to provide additional data for use in determining the validity of the requested waiver. The cognizant District Commander may grant a waiver, in writing, with or without conditions only if the waiver will not reduce the overall
For any measure required by this part, the OCS facility owner or operator may propose an equivalent, as provided in § 101.130 of this subchapter.
An OCS facility owner or operator may use an Alternative Security Program approved under § 101.120 of this subchapter if:
(a) The Alternative Security Program is appropriate to that OCS facility;
(b) The OCS facility does not serve vessels on international voyages; and
(c) The Alternative Security Program is implemented in its entirety.
All OCS facility owners or operators subject to this part must comply with any instructions contained in a MARSEC Directive issued under § 101.405 of this subchapter.
Any person directly affected by a decision or action taken under this part, by or on behalf of the Coast Guard, may appeal as described in § 101.420 of this subchapter.
(a) Each OCS facility owner or operator must ensure that the OCS facility operates in compliance with the requirements of this part.
(b) For each OCS facility, the OCS facility owner or operator must:
(1) Define the security organizational structure for each OCS Facility and provide each person exercising security duties or responsibilities within that structure the support needed to fulfill those obligations;
(2) Designate in writing, by name or title, a Company Security Officer (CSO) and a Facility Security Officer (FSO) for each OCS Facility and identify how those officers can be contacted at any time;
(3) Ensure that a Facility Security Assessment (FSA) is conducted;
(4) Ensure the development and submission for approval of a Facility Security Plan (FSP);
(5) Ensure that the OCS facility operates in compliance with the approved FSP;
(6) Ensure that adequate coordination of security issues takes place between OCS facilities and vessels, including the execution of a Declaration of Security (DoS) as required by this part;
(7) Ensure, within 12 hours of notification of an increase in MARSEC Level, implementation of the additional security measures required by the FSP for the new MARSEC Level; and
(8) Ensure all breaches of security and security incidents are reported in accordance with part 101 of this subchapter.
(a)
(2) A CSO may perform other duties within the owner's or operator's organization, provided he or she is able to perform the duties and responsibilities required of the CSO.
(3) The CSO may delegate duties required by this part, but remains responsible for the performance of those duties.
(b)
(1) Security administration and organization of the OCS facility;
(2) OCS facility and vessel operations and conditions;
(3) OCS facility and vessel security measures including the meaning and consequential requirements of the different MARSEC Levels;
(4) Emergency preparedness and response and contingency planning;
(5) Security equipment and systems and their operational limitations;
(6) Methods of conducting audits, inspection, control, and monitoring; and
(7) Techniques for security training and education, including security measures and procedures.
(c) In addition to the knowledge and training in paragraph (b) of this section, the CSO must have general knowledge, through training or equivalent job experience, in the following, as appropriate:
(1) Relevant international conventions, codes, and recommendations;
(2) Relevant government legislation and regulations;
(3) Responsibilities and functions of other security organizations;
(4) Methodology of Facility Assessment;
(5) Methods of OCS facility security surveys and inspections.
(6) Handling sensitive security information (SSI) and security related communications;
(7) Knowledge of current security threats and patterns;
(8) Recognition and detection of dangerous substances and devices;
(9) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(10) Techniques used to circumvent security measures;
(11) Methods of physical screening and non-intrusive inspections; and
(12) Conducting and assessing security drills and exercises.
(d)
(1) Keep the OCS facility apprised of potential threats or other information relevant to its security;
(2) Ensure that a Facility Security Assessment (FSA) is carried out in compliance with this part;
(3) Ensure that a Facility Security Plan (FSP) is developed, approved, maintained, and implemented in compliance with this part;
(4) Ensure that the FSP is modified when necessary to comply with this part;
(5) Ensure that OCS facility security activities are audited in compliance with this part;
(6) Ensure the timely correction of problems identified by audits or inspections;
(7) Enhance security awareness and vigilance within the owner's or operator's organization;
(8) Ensure relevant personnel receive adequate security training in compliance with this part;
(9) Ensure communication and cooperation between the OCS facility and vessels that interface with it, in compliance with this part;
(10) Ensure consistency between security requirements and safety requirements in compliance with this part;
(11) Ensure that if a common FSP is prepared for more than one similar OCS facility, the FSP reflects any OCS facility specific characteristics; and
(12) Ensure compliance with an Alternative Security Program or equivalents approved under this subchapter, if appropriate.
(a)
(2) The same person may serve as the FSO for more than one OCS facility,
(3) The FSO may assign security duties to other OCS facility personnel; however, the FSO remains responsible for these duties.
(b)
(1) Those items listed in § 106.205(b), and as appropriate § 106.205(c), of this part;
(2) OCS facility layout;
(3) The FSP and related procedures; and
(4) Operation, testing and maintenance of security equipment and systems.
(c)
(1) Regularly inspect the OCS facility to ensure that security measures are maintained in compliance with this part;
(2) Ensure the maintenance of and supervision of the implementation of the FSP, and any amendments to the FSP, in compliance with this part;
(3) Ensure the coordination and handling of stores and industrial supplies in compliance with this part;
(4) Where applicable, propose modifications to the FSP to the Company Security Officer (CSO);
(5) Ensure that any problems identified during audits or inspections are reported to the CSO, and promptly implement any corrective actions;
(6) Ensure security awareness and vigilance on board the OCS facility;
(7) Ensure adequate security training for OCS facility personnel in compliance with this part;
(8) Ensure the reporting and recording of all security incidents in compliance with this part;
(9) Ensure the coordinated implementation of the FSP with the CSO;
(10) Ensure that security equipment is properly operated, tested, calibrated and maintained in compliance with this part;
(11) Ensure consistency between security requirements and the proper treatment of OCS facility personnel affected by those requirements;
(12) Ensure that occurrences that threaten the security of the OCS facility are recorded and reported to the CSO;
(13) Ensure that when changes in the MARSEC Level are attained they are recorded and reported to the CSO, OCS facility owner or operator, and the cognizant District Commander; and
(14) Have prompt access to a copy of the FSA, along with an approved copy of the FSP.
Company or OCS facility personnel responsible for security duties must have knowledge, through training or equivalent job experience, in the following, as appropriate:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(d) Recognition of techniques used to circumvent security measures;
(e) Security related communications;
(f) Knowledge of emergency procedures and contingency plans;
(g) Operation of security equipment and systems;
(h) Testing, calibration, and maintenance of security equipment and systems;
(i) Inspection, control, and monitoring techniques;
(j) Methods of physical screenings of persons, personal effects, stores and industrial supplies;
(k) Relevant provisions of the Facility Security Plan (FSP); and
(l) The meaning and the consequential requirements of the different MARSEC Levels.
All other OCS facility personnel, including contractors, whether part-time, full-time, temporary, or permanent, must have knowledge, through training or equivalent job experience, of the following:
(a) Relevant provisions of the Facility Security Plan (FSP);
(b) The meaning and the consequential requirements of the different MARSEC Levels including emergency procedures and contingency plans;
(c) Recognition and detection of dangerous substances and devices;
(d) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security; and
(e) Recognition of techniques used to circumvent security measures.
(a)
(b)
(2) Drills must test individual elements of the FSP, including response to security threats and incidents. Drills should take into account the types of operations of the OCS facility, OCS facility personnel changes, the types of vessels calling at the OCS facility, and other relevant circumstances. Examples of drills include unauthorized entry to a restricted area, response to alarms, and notification of appropriate authorities.
(3) If a vessel is conducting operations with the OCS facility on the date the OCS facility has planned to conduct any drills, the OCS facility may include, but cannot require, the vessel or vessel personnel to participate in the OCS facility's scheduled drill.
(c)
(2) Exercises may be:
(i) Full scale or live;
(ii) Tabletop simulation;
(iii) Combined with other appropriate exercises held; or
(iv) A combination of the elements in paragraphs (c)(2)(i) through (iii) of this section.
(3) Exercises may be facility-specific or part of a cooperative exercise program.
(4) Each exercise must test communication and notification procedures, and elements of coordination, resource availability, and response.
(5) Exercises are a full test of the Facility Security Plan and must include substantial and active participation of relevant company and OCS facility personnel, and may include governmental authorities and vessels depending on the scope and the nature of the exercise.
(a) Unless otherwise specified in this section, the Facility Security Officer (FSO) must keep records of the activities as set out in paragraph (b) of this section for at least 2 years and make them available to the Coast Guard upon request.
(b) Records required by this section may be kept in electronic format. If kept in an electronic format, they must be protected against unauthorized access, deletion, destruction, amendment, and disclosure. The following records must be kept:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(a) The OCS facility owner or operator must ensure the OCS facility operates in compliance with the security requirements in this part for the MARSEC Level in effect for the OCS facility.
(b) When notified of an increase in the MARSEC Level, the OCS facility owner and operator must ensure:
(1) Vessels conducting operations with the OCS facility and vessels scheduled to arrive at the OCS facility within 96 hours of the MARSEC Level change are notified of the new MARSEC Level and the Declaration of Security (DoS), if applicable, is revised as necessary;
(2) The OCS facility complies with the required additional security measures within 12 hours; and
(3) The OCS facility reports compliance or noncompliance to the cognizant District Commander.
(c) For MARSEC Levels 2 and 3, the Facility Security Officer (FSO) must inform all OCS facility personnel about identified threats, emphasize reporting procedures, and stress the need for increased vigilance.
(d) An OCS facility owner or operator whose facility is not in compliance with the requirements of this section must so inform the cognizant District Commander and obtain approval prior to interfacing with another vessel or prior to continuing operations.
(a) The Facility Security Officer (FSO) must have a means to effectively notify OCS facility personnel of changes in security conditions at the OCS facility.
(b) Communication systems and procedures must allow effective and continuous communications between the OCS facility security personnel, vessels interfacing with the OCS facility, with the cognizant District Commander, and national and local authorities with security responsibilities.
(c) Facility communications systems must have a backup means for both internal and external communications.
The OCS facility owner or operator must ensure that there are measures for interfacing with vessels at all MARSEC Levels.
(a) Each OCS facility owner or operator must ensure procedures are established for requesting a DoS and for handling DoS requests from vessels.
(b) At MARSEC Level 1, owners or operators of OCS facilities interfacing with a manned vessel carrying Certain Dangerous Cargoes, in bulk, must:
(1) Prior to the arrival of a vessel to the OCS facility, ensure the Facility Security Officer (FSO) and Master, Vessel Security Officer (VSO), or their designated representatives coordinate security needs and procedures, and agree upon the contents of a DoS for the period of time the vessel is at the OCS facility; and
(2) Upon the arrival of the vessel at the OCS facility, the FSO and Master, VSO, or their designated representatives, must sign the written DoS.
(c) Neither the OCS facility nor the vessel may embark or disembark personnel, or transfer stores or industrial supplies until the DoS has been signed.
(d) At MARSEC Levels 2 and 3, the FSOs of OCS facilities interfacing with manned vessels subject to part 104 must sign and implement DOSs.
(e) At MARSEC Levels 1 and 2, FSOs of OCS facilities that frequently interface with the same vessel may implement a continuing DoS for multiple visits, provided that:
(1) The DoS is valid for a specific MARSEC Level;
(2) The effective period at MARSEC Level 1 does not exceed 90 days; and
(3) The effective period at MARSEC Level 2 does not exceed 30 days.
(f) When the MARSEC Level increases beyond that contained in the DoS, the continuing DoS is void and a new DoS must be executed in accordance with this section.
(a) Security systems and equipment must be in good working order and inspected, tested, calibrated, and maintained according to manufacturers' recommendations.
(b) Security systems must be regularly tested in accordance with the manufacturers' recommendations; noted deficiencies corrected promptly; and the results recorded as required in § 106.230(b)(5) of this part.
(c) The Facility Security Plan (FSP) must include procedures for identifying and responding to security system and equipment failures or malfunctions.
(a)
(1) Deter the unauthorized introduction or dangerous substances and devices, including any device intended to damage or destroy persons, vessels, or the OCS facility;
(2) Secure dangerous substances and devices that are authorized by the OCS facility owner or operator to be on board; and
(3) Control access to the OCS facility.
(b) The OCS facility owner or operator must ensure that:
(1) All locations providing means of access to the OCS facility where access restrictions or prohibitions are applied for each security level to prevent unauthorized access;
(2) The identification of the types of restriction or prohibition to be applied and the means of enforcing them; and
(3) The means of identification required to allow individuals to access
(c) The OCS facility owner or operator must ensure that an identification system is established for checking the identification of OCS facility personnel or other persons seeking access to the OCS facility that:
(1) Provides for identification of authorized and unauthorized persons at any MARSEC Level;
(2) Is coordinated, when practicable, with identification systems used by vessels conducting operations with the OCS facility;
(3) Is updated regularly; and
(4) Allows temporary or continuing access for OCS facility personnel and visitors through the use of a badge or other system to verify their identity.
(d) The OCS facility owner or operator must establish in the approved Facility Security Plan (FSP) the frequency of application of any access controls, particularly if they are to be applied on a random or occasional basis.
(e)
(1) Screen persons and personal effects going aboard the OCS facility for dangerous substances and devices at the rate specified in the approved FSP;
(2) Conspicuously post signs that describe security measures currently in effect and clearly stating that:
(i) Boarding an OCS facility is deemed valid consent to screening or inspection; and
(ii) Failure to consent or submit to screening or inspection will result in denial or revocation of authorization to be on board;
(3) Check the identification of any person seeking to board the OCS facility, including OCS facility employees, passengers and crews of vessels interfacing with the OCS facility, vendors, and visitors;
(4) Deny or revoke a person's authorization to be on board if the person is unable or unwilling, upon the request of OCS facility personnel, to establish his or her identity or to account for his or her presence on board. Any such incident must be reported in compliance with this part;
(5) Deter unauthorized access to the OCS facility;
(6) Identify access points that must be secured or attended to deter unauthorized access;
(7) Lock or otherwise prevent access to unattended spaces that adjoin areas to which passengers and visitors have access;
(8) Ensure OCS facility personnel are not required to engage in or be subjected to screening, of the person or of personal effects, by other OCS facility personnel, unless security clearly requires it;
(9) Provide a designated secure area on board, or in liaison with a vessel interfacing with the OCS facility, for conducting inspections and screening of people and their personal effects; and
(10) Respond to the presence of unauthorized persons on board.
(f)
(1) Increasing the frequency and detail of screening of people and personal effects embarking onto the OCS facility as specified for MARSEC Level 2 in the approved FSP;
(2) Assigning additional personnel to patrol deck areas during periods of reduced OCS facility operations to deter unauthorized access;
(3) Limiting the number of access points to the OCS facility by closing and securing some access points; or
(4) Deterring waterside access to the OCS facility, which may include, providing boat patrols.
(g)
(1) Screening all persons and personal effects for dangerous substances and devices;
(2) Being prepared to cooperate with responders;
(3) Limiting access to the OCS facility to a single, controlled access point;
(4) Granting access to only those responding to the security incident or threat thereof;
(5) Suspending embarkation and/or disembarkation of personnel;
(6) Suspending the onloading of stores or industrial supplies;
(7) Evacuating the OCS facility; or
(8) Preparing for a full or partial search of the OCS facility.
(a)
(1) Prevent or deter unauthorized access;
(2) Protect persons authorized to be in the OCS facility;
(3) Protect the OCS facility;
(4) Protect vessels using and serving the OCS facility;
(5) Protect sensitive security areas within the OCS facility;
(6) Protect security and surveillance equipment and systems; and
(7) Protect stores and industrial supplies from tampering.
(b)
(1) Areas containing sensitive security information;
(2) Areas containing security and surveillance equipment and systems and their controls, and lighting system controls; and
(3) Areas containing critical OCS facility infrastructure equipment, including:
(i) Water supplies;
(ii) Telecommunications;
(iii) Power distribution system;
(iv) Access points for ventilation and air-conditioning systems;
(v) Manufacturing areas and control rooms;
(vi) Areas designated for loading, unloading or storage of stores and industrial supplies; and
(vii) Areas containing hazardous materials.
(c) The OCS facility owner or operator must ensure that the Facility Security Plan (FSP) should include measures for restricted areas to:
(1) Identify which OCS facility personnel are authorized to have access;
(2) Determine which persons other than OCS facility personnel are authorized to have access;
(3) Determine the conditions under which that access may take place;
(4) Define the extent of any restricted area; and
(5) Define the times when access restrictions apply.
(d)
(1) Restricting access to only authorized personnel;
(2) Securing all access points not actively used and providing physical barriers to impede movement through the remaining access points;
(3) Verifying the identification and authorization of all persons seeking entry;
(4) Using security personnel, automatic intrusion detection devices, surveillance equipment, or surveillance systems to detect unauthorized entry to or movement within restricted areas; or
(5) Designating temporary restricted areas to accommodate OCS facility operations. If temporary restricted areas are designated, the FSP must include security requirements to conduct a security sweep of the designated temporary restricted areas both before and after the area has been established.
(e)
(1) Enhancing the effectiveness of the barriers surrounding restricted areas, for example, by the use of patrols or automatic intrusion detection devices;
(2) Reducing the number of access points to restricted areas, and enhancing the controls applied at the remaining accesses;
(3) Further restricting access to the restricted areas and movements and storage within them;
(4) Using continuously monitored and recorded surveillance equipment;
(5) Increasing the number and frequency of patrols, including the use of waterborne patrols; or
(6) Restricting access to areas adjacent to the restricted areas.
(f)
(1) Restricting access to additional areas;
(2) Prohibiting access to restricted areas; or
(3) Searching restricted areas as part of a security sweep of all or part of the OCS facility.
(a)
(1) Check stores or industrial supplies for package integrity;
(2) Prevent stores or industrial supplies from being accepted without inspection;
(3) Deter tampering; and
(4) Prevent stores and industrial supplies from being accepted unless ordered. For any vessels that routinely use an OCS facility, an OCS facility owner or operator may establish and implement standing arrangements between the OCS facility, its suppliers, and any vessel delivering stores or industrial supplies regarding notification and the timing of deliveries and their documentation.
(b)
(1) Inspect stores or industrial supplies before being accepted; and
(2) Check that stores or industrial supplies match the order prior to being brought on board.
(c)
(1) Intensifying inspection of the stores or industrial supplies during delivery; or
(2) Checking stores or industrial supplies prior to receiving them on board.
(d)
(1) Checking all OCS facility stores or industrial supplies more extensively;
(2) Restricting or suspending delivery of stores or industrial supplies; or
(3) Refusing to accept stores or industrial supplies on board.
(a)
(i) OCS facility;
(ii) Restricted areas on board the OCS facility; and
(iii) The area surrounding the OCS facility.
(2) The following must be considered when establishing the appropriate level and location of lighting:
(i) OCS facility personnel should be able to detect activities on and around OCS facility;
(ii) Coverage should facilitate personnel identification at access points; and
(iii) Lighting effects, such as glare, and their impact on safety, navigation, and other security activities.
(b)
(1) Monitor the OCS facility, particularly OCS facility access points and restricted areas;
(2) Be able to conduct emergency searches of the OCS facility;
(3) Ensure that equipment or system failures or malfunctions are identified and corrected;
(4) Ensure that any automatic intrusion detection device, sets off an audible or visual alarm, or both, at a location that is continually attended or monitored; and
(5) Light deck and OCS facility access points during the period between sunset and sunrise and periods of limited visibility sufficiently to allow visual identification of persons seeking access to the OCS facility.
(c)
(1) Increasing the frequency and detail of security patrols;
(2) Using (if not already in use) or increasing the use of security and surveillance equipment;
(3) Assigning additional personnel as security lookouts; or
(4) Coordinating with boat patrols, when provided.
(d)
(1) Cooperating with responders;
(2) Switching on all lights;
(3) Switching on all surveillance equipment capable of recording activities on, or in the vicinity of, the OCS facility;
(4) Maximizing the length of time such surveillance equipment (if not already in use) can continue to record; or
(5) Preparing for underwater inspection of the OCS facility.
For each MARSEC Level, the OCS facility owner or operator must ensure the Facility Security Officer (FSO) and OCS facility security personnel are able to:
(a) Respond to security threats or breaches of security and maintain critical OCS facility and OCS facility-to-vessel interface operations;
(b) Deny access to the OCS facility, except to those responding to an emergency;
(c) Evacuate the OCS facility in case of security threats or breaches of security; and
(d) Report security incidents as required in § 101.305 of this subchapter;
(e) Brief all OSC facility personnel on possible threats and the need for vigilance, soliciting their assistance in reporting suspicious persons, objects, or activities; and
(f) Secure non-critical operations in order to focus response on critical operations.
(a) The Facility Security Assessment (FSA) is a written document that is based on the collection of background information, the completion of an on-scene survey and an analysis of that information.
(b) A single FSA may be performed and applied to more than one OCS facility to the extent they share physical characteristics, location, and operations.
(c) Third parties may be used in any aspect of the FSA if they have the appropriate skills and if the Company Security Officer (CSO) reviews and accepts their work.
(d) Those involved in a FSA must be able to draw upon expert assistance in the following areas, as appropriate:
(1) Knowledge of current and anticipated security threats and patterns;
(2) Recognition and detection of dangerous substances and devices;
(3) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(4) Recognition of techniques used to circumvent security measures;
(5) Methods used to cause a security incident;
(6) Effects of dangerous substances and devices on structures and essential services;
(7) OCS facility security requirements;
(8) OCS facility and vessel interface business practices;
(9) Contingency planning, emergency preparedness and response;
(10) Physical security requirements;
(11) Radio and telecommunications systems, including computer systems and networks;
(12) Marine or civil engineering; and
(13) OCS facility and vessel operations.
(a)
(1) The general layout of the OCS facility, including:
(i) The location of each access point to the OCS facility;
(ii) The number, reliability, and security duties of OCS facility personnel;
(iii) Security doors, barriers, and lighting;
(iv) The location of restricted areas;
(v) The emergency and stand-by equipment available to maintain essential services;
(vi) The essential maintenance equipment and storage areas;
(vii) Location of escape and evacuation routes and assembly stations; and
(viii) Existing security and safety equipment for protection of personnel;
(2) Response procedures for fire or other emergency conditions;
(3) Procedures for monitoring OCS facility and vessel personnel;
(4) Procedures for controlling keys and other access prevention systems;
(5) Response capability for security incidents;
(6) Threat assessments, including the purpose and methodology of the assessment, for the OCS facility's location;
(7) Previous reports on security needs; and
(8) Any other existing security procedures and systems, equipment, communications, and OCS facility personnel.
(b)
(c)
(1) Each vulnerability found during the on-scene survey, including but not limited to:
(i) Access to the OCS facility;
(ii) Structural integrity of the OCS facility;
(iii) Existing security measures and procedures, including identification systems;
(iv) Existing security measures and procedures relating to essential services;
(v) Measures to protect radio and telecommunication equipment, including computer systems and networks;
(vi) Existing agreements with private security companies;
(vii) Any conflicting policies between safety and security measures and procedures;
(viii) Any conflicting OCS facility operations and security duty assignments;
(ix) Any deficiencies identified during daily operations or training and drills; and
(x) Any deficiencies identified following security incidents or alerts, the report of security concerns, the exercise of control measures, or audits.
(2) Possible security threats, including but not limited to:
(i) Damage to or destruction of the OCS facility or of a vessel adjacent to the OCS facility;
(ii) Smuggling dangerous substances and devices;
(iii) Use of a vessel interfacing with the OCS facility to carry those intending to cause a security incident and their equipment;
(iv) Use of a vessel interfacing with the OCS facility as a weapon or as a means to cause damage or destruction; and
(v) Nuclear, radiological, explosive, biological, and chemical attack;
(3) Threat assessments by Government agencies;
(4) Vulnerabilities, including human factors, in the OCS facility's infrastructure, policies and procedures;
(5) Any particular aspects of the OCS facility, including the vessels that interface with the OCS facility, which make it likely to be the target of an attack;
(6) Likely consequences, in terms of loss of life, damage to property, or economic disruption, of an attack on or at the OCS facility; and
(7) Locations where access restrictions or prohibitions will be applied for each MARSEC Level.
(d)
(i) A summary of how the on-scene survey was conducted;
(ii) A description of existing security measures, including inspection, control and monitoring equipment, personnel identification documents and communication, alarm, lighting, access control, and similar systems;
(iii) A description of each vulnerability found during the on-scene survey;
(iv) A description of security measures that could be used to address each vulnerability.
(v) A list of the key OCS facility operations that are important to protect; and
(vi) A list of identified weaknesses, including human factors, in the infrastructure, policies, and procedures of the OCS facility.
(2) A FSA report must describe the following elements within the OCS facility:
(i) Physical security;
(ii) Structural integrity;
(iii) Personnel protection systems;
(iv) Procedural policies;
(v) Radio and telecommunication systems, including computer systems and networks; and
(vi) Essential services.
(a) A completed FSA report must be submitted with the Facility Security Plan (FSP) required in § 106.405 of this part.
(b) An OCS facility owner or operator may generate and submit a report that contains the FSA for more than one OCS facility subject to this part, to the extent that they share similarities in physical characteristics, location and operations.
(a) The OCS facility owner or operator must ensure the FSO develops and implements a Facility Security Plan (FSP) for each OCS facility for which he or she is designated as FSO. The FSP:
(1) Must identify the FSO by name or position and provide 24-hour contact information;
(2) Must be written in English;
(3) Must address each vulnerability identified in the Facility Security Assessment (FSA);
(4) Must describe security measures for each MARSEC Level; and
(5) May cover more than one OCS facility to the extent that they share similarities in physical characteristics and operations, if authorized and approved by the cognizant District Commander.
(b) The FSP must be submitted for approval to the cognizant District Commander in a written or electronic format in a manner prescribed by the cognizant District Commander.
(c) The FSP is sensitive security information and must be protected in accordance with 49 CFR part 1520.
(d) If the FSP is kept in an electronic format, procedures must be in place to prevent its unauthorized deletion, destruction, or amendment.
(a) An OCS facility owner or operator must ensure that the FSP consists of the individual sections listed in this paragraph (a). If the FSP does not follow the order as it appears in the list, the OCS facility owner or operator must ensure that the FSP contains an index identifying the location of each of the following sections:
(1) Security organization of the OC facility;
(2) Personnel training;
(3) Drills and exercises;
(4) Records and documentation;
(5) Response to change in MARSEC Level;
(6) Procedures for interfacing with vessels;
(7) Declaration of Security (DoS);
(8) Communications;
(9) Security systems and equipment maintenance;
(10) Security measures for access control;
(11) Security measures for restricted areas;
(12) Security measures for delivery of stores and industrial supplies;
(13) Security measures for monitoring;
(14) Security incident procedures;
(15) Audits and FSP amendments; and
(16) Facility Security Assessment (FSA) report.
(b) The OCS facility owner or operator must ensure that the FSP describes in detail how each of the requirements of subpart B of this part will be met.
(a) On or before December 29, 2003, each OCS facility owner or operator must either:
(1) Submit one copy of the Facility Security Plan (FSP) for review and approval to the cognizant District Commander and a letter certifying that the FSP meets the applicable requirements of this part; or
(2) If implementing a Coast Guard approved Alternative Security Program, meet the requirements in § 101.120(b) of this subchapter.
(b) OCS facilities built on or after July 1, 2004, must comply with the requirements in paragraph (a) of this section 60 days prior to beginning operations.
(c) The cognizant District Commander will examine each submission for compliance with this part, and return to the submitter either:
(1) A letter of approval, stating acceptance of the FSP and specifying any conditions of approval;
(2) An acknowledgement letter stating that the Coast Guard is currently reviewing the FSP submitted for approval, and that the OCS facility may continue to operate so long as the OCS facility remains in compliance with the submitted FSP; or
(3) A disapproval letter specifying the reasons for disapproval and the submitted FSP.
(d) An FSP may be submitted and approved to cover more than one OCS facility where they share similarities in physical characteristics, location, and operations.
(e) Each OCS facility owner or operator that submits one FSP to cover two or more OCS facilities of similar design, location, and operation must address OCS facility-specific information that includes the physical and operational characteristics of each OCS facility.
(f) An FSP that is approved by the cognizant District Commander is valid for 5 years from the date of its approval. The cognizant District Commander will issue an approval letter, as indicated in § 106.115 of this part.
(a)
(i) The OCS facility owner or operator; or
(ii) The cognizant District Commander, upon a determination that an amendment is needed to maintain the OCS facility's security. The cognizant District Commander will give the OCS facility owner or operator written notice and request that the OCS facility owner or operator propose amendments addressing any matters specified in the notice. The OCS facility owner or operator will have at least 60 days to submit its proposed amendments. Until amendments are approved, the OCS facility owner or operator shall ensure temporary security measures are implemented to the satisfaction of the cognizant District Commander.
(2) Proposed amendments must be sent to the cognizant District Commander. If initiated by the OCS facility owner or operator, the proposed amendment must be submitted at least 30 days before the amendment is to take effect unless the cognizant District Commander allows a shorter period. The cognizant District Commander will approve or disapprove the proposed amendment in accordance with § 106.410 of this subpart.
(3) If the owner or operator has changed, the Facility Security Officer (FSO) must amend the Facility Security Plan (FSP) to include the name and contact information of the new OCS facility owner(s) or operator(s) and submit the affected portion of the FSP for review and approval in accordance with § 106.410 of this subpart.
(b)
(2) If there is a change in ownership or operations of the OCS facility, or if there have been modifications to the OCS facility, the FSP must be audited including but not limited to physical structure, emergency response procedures, security measures, or operations.
(3) Auditing the FSP as a result of modifications to the OCS facility may be limited to those sections of the FSP affected by the OCS facility modifications.
(4) Unless impracticable due to the size and nature of the company or the OCS facility, personnel conducting internal audits of the security measures specified in the FSP or evaluating its implementation must:
(i) Have knowledge of methods of conducting audits and inspections, and control and monitoring techniques;
(ii) Not have regularly assigned security duties; and
(iii) Be independent of any security measures being audited.
(5) If the results of an audit require an amendment of either the Facility Security Assessment (FSA) or FSP, the FSO must submit, in accordance with § 106.410 of this subpart, the amendments to the cognizant District Commander for review and approval no later than 30 days after completion of the audit and a letter certifying that the amended FSP meets the applicable requirements of this part.
Coast Guard, DHS.
Temporary interim rule with request for comments and notice of meeting.
The Coast Guard is amending port and waterway regulations to reflect vessel carriage requirements and establish technical and performance standards for an Automatic Identification System (AIS). This interim rule will implement the AIS carriage requirements of the Maritime Transportation Security Act of 2002 (MTSA) and the International Maritime Organization requirements adopted under International Convention for the Safety of Life at Sea, 1974, (SOLAS) as amended. The changes will require AIS on all vessels subject to SOLAS, Vessel Traffic Service Users and certain other commercial vessels. The rule will facilitate vessel-to-vessel and vessel-to-shore communications; it will enhance good order and predictability on the waterways, promote safe navigation; and contribute to maritime domain awareness to protect the security of our nation's ports and waterways.
This rule is one of six interim rules in today's
In view of the benefit-cost ratio presented herein, the Coast Guard will share with Congress any significant information provided by the public that addresses the reasonableness of implementing the statute.
(1) Electronically to the Docket Management System at
(2) By mail to the Docket Management Facility (USCG-2003-14757) at the U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
If you have questions on this interim rule, contact Mr. Jorge Arroyo, Office of Vessel Traffic Management (G-MWV), Coast Guard by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or electronic mail
Due to the short timeframe given to implement these National Maritime Transportation Security initiatives, as directed by the Maritime Transportation Security Act (MTSA) of 2002 (MTSA, Pub. L. 107-295, 116 STAT. 2064), and to ensure all comments are in the public venue for these important rulemakings, we are not accepting comments containing protected information for these interim rules. We request you submit comments, as explained in the Request for Comments section below, and discuss your concerns or support in a manner that is not security sensitive. We also request that you not submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
Electronic forms of all comments received into any of our dockets can be searched by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor unit, etc.) and is open to the public without restriction. You may also review the Department of Transportation's complete Privacy Act Statement published in the
We encourage you to participate in this rulemaking by submitting comments and related material. Your comments will be considered for the final rule we plan to issue before November 25, 2003, to replace this interim rule. If you choose to comment on this rulemaking, please include your name and address, identify the specific docket number for this interim rule (USCG-2003-14757), indicate the specific heading of this document to which each comment applies, and give the reason for each comment. If you have comments on another rule please submit those comments in a separate letter to the docket for that rulemaking. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under
Note, matters pertaining to AIS licensing, equipment certification, and frequencies are subject to Federal Communications Commission regulations and are not addressed in this rule, see FCC Public Notice DA 02-1362 in the docket for further information.
We will hold a public meeting on July 23, 2003, in Washington, DC at the Grand Hyatt Hotel, at the address listed under
We did not publish a notice of proposed rulemaking for this rulemaking and are making this interim rule effective upon publication. Section 102(d)(1) of the Maritime Transportation Security Act of 2002 (MTSA, Public Law 107-295, 116 Stat. 2064) requires the publication of an interim rule as soon as practicable without regard to the provisions of chapter 5 of title 5, U.S. Code (Administrative Procedure Act). The Coast Guard finds that harmonization of U.S. regulations with maritime security measures adopted by the International Maritime Organization (IMO) in December 2002, and the need to institute measures for the protection of U.S. maritime security as soon as practicable, furnish good cause for this interim rule to take effect immediately under both the Administrative Procedure Act and section 808 of the Congressional Review Act.
The provisions set forth in this rulemaking and the associated regulatory assessment take into account: (1) The recently enacted MTSA, which requires an AIS on most commercial vessels on all navigable waters, and (2) the International Convention for the Safety of Life at Sea, 1974, (SOLAS) amendments from the December 2002 International Maritime Organization (IMO) Diplomatic Conference. This rule will amend AIS standards to those adopted by the IMO and SOLAS and defined in the International Telecommunication Union Radiocommunication Bureau (ITU-R) Recommendation ITU-R M.1371-1 and International Electrotechnical Commission (IEC) IEC 61993-2.
The recent SOLAS AIS amendments accelerate the implementation schedule, as discussed below under “Background and Purpose-Acceleration of SOLAS AIS Implementation.” Copies of the MTSA and the SOLAS AIS amendments are available in the docket as indicated under
The Coast Guard held a public meeting on October 28, 1998, in New Orleans, Louisiana. The meeting was announced in a notice published in the
Over the past few years, the Coast Guard has made AIS presentations at various public forums including Federal advisory committee meetings (Towing Safety Advisory Committee, National Offshore Safety Advisory Committee, Houston-Galveston Navigation Safety Advisory Committee and Navigation Safety Advisory Council). Moreover, the AIS-based Ports and Waterways Safety System project being installed at the VTS Lower Mississippi River is regularly discussed at the Lower Mississippi River Waterway Safety Advisory Committee meetings.
The Houston-Galveston Navigation Safety Advisory Committee and Lower Mississippi River Waterway Safety Advisory Committee are Federally chartered advisory committees charged with making recommendations to the Coast Guard on matters relating to the safe and efficient transit of vessels on their respective waterways. These open forums have afforded the public, particularly those in the Gulf of Mexico and Mississippi River areas, the opportunity to comment on both VTS Lower Mississippi River and AIS issues. The public's input will be taken into account throughout this rulemaking. Elsewhere in today's
Section 5004 of the Oil Pollution Act of 1990, as codified in 33 U.S.C. 2734, directed the Coast Guard to operate additional equipment, as necessary, to provide surveillance of tank vessels transiting Prince William Sound, Alaska. We have done so since 1994 through a system then known as “Automated Dependent Surveillance.” Advances have taken place with this technology, now referred to as the AIS. Section 102 of the MTSA mandates that AIS be installed and operating on most commercial and passenger vessels on all navigable waters of the United States.
The version of AIS required by this interim rule automatically broadcasts vessel and voyage-related information that is received by other AIS-equipped ships and shore stations. In the ship-to-shore mode, AIS enhances maritime domain awareness and allows for the efficient exchange of vessel traffic information that previously was only available via voice communications with a VTS. In ship-to-ship mode, an AIS provides essential information to other vessels, such as name, position, course, and speed that is not otherwise readily available onboard vessels. In either mode, an AIS enhances the mariner's situational awareness, makes possible the accurate exchange of navigational information, mitigates collision through reliable passing arrangements, and facilitates vessel traffic management, while simultaneously reducing very high frequency voice transmissions.
AISs have achieved acceptance through worldwide adoption of performance and technical standards developed to ensure commonality, universality, and inter-operability. These recommendations have now been established and adopted as standards by the following diverse international bodies: the IMO, the International Telecommunications Union (ITU), and the International Electrotechnical Commission (IEC). Further, installation of such equipment is required on vessels subject to SOLAS, as amended.
This interim rule requires the following vessels to install and operate AIS:
• Vessels on international voyages subject to SOLAS under the schedule set forth in SOLAS chapter V, regulation 19.2.4;
• Vessels of 65 feet or more in length, not subject to SOLAS or transiting a VTS area, in commercial service on international voyages by December 31, 2004; and
• The following VTS or VMRS users:
• Self-propelled vessels of 65 feet or more in length, in commercial service;
• Towing vessel 26 feet or more in length and more than 600 horsepower;
• Vessels of 100 gross tons or more carrying one or more passengers for hire; and
• Passenger vessels certificated to carry 50 or more passengers for hire.
The VTS and VMRS users must comply by: December 31, 2003, within VTS St. Marys River; by July 1, 2004, within VTS Berwick Bay, VMRS Los Angeles/Long Beach, VTS Lower Mississippi River, VTS Port Arthur and VTS Prince William Sound; by December 31, 2004, within VTS Houston-Galveston, VTS New York, VTS Puget Sound, and VTS San Francisco.
Note that the compliance dates set forth in SOLAS differ from those enacted in the MTSA. In this rule, where the dates differ, we have sided with the internationally agreed upon dates of SOLAS, particularly regarding tankers built before July 1, 2002, where the compliance date is the first survey of these vessels for safety equipment on or after July 1, 2003, which could extend compliance to July 1, 2004 (one year later than the MTSA).
However, we accelerated AIS implementation from the revised SOLAS schedule to meet other international obligations. As of March 25, 2003, the Saint Lawrence Seaway Development Corporation, under an international agreement with the St. Lawrence Seaway Management Corporation of Canada, has required AIS on vessels transiting St. Lawrence Seaway waters from St. Lambert, Quebec to Long Point, in mid-Lake Erie. (68 FR 9549, February 28, 2003). We anticipate VTS St. Marys River will be AIS-capable by December 31, 2003, and at that time we will require all VTS users, including SOLAS vessels, transiting the Seaway and the VTS to continue AIS operation through their entire transit.
This acceleration also follows our plan to require AIS use in areas where we will have an infrastructure to fully monitor and manage the AIS data link and ensure accurate maritime domain awareness. That is why we have, initially, decided to implement AIS predominately in VTS and VMRS areas as they become equipped with AIS capability.
The MTSA calls for AIS use in all navigable waters, but allows this requirement to be waived if the Secretary finds that an AIS is not needed for safe navigation on specified navigable waters. The Coast Guard
The December 2000 Amendments to SOLAS provided for a phased-in AIS carriage schedule under chapter V, regulation 19.2.4 that started July 1, 2002, and extended to July 1, 2008, depending on ship type and tonnage. After September 11, 2001, and in an effort to improve safety, security and maritime domain awareness worldwide, the United States initiated action through IMO to accelerate this implementation schedule.
In November 2001, the IMO Assembly, on the recommendation of the United States and numerous other nations, adopted resolution A.924(22) with the goals of enhancing maritime security. This resolution instructed the Organization to develop appropriate measures to improve maritime security. Based upon a recommendation by the United States, the Assembly also agreed to convene an international conference in December 2002 to formally adopt whatever measures were developed.
In February 2002, an Intersessional Working Group of the IMO Maritime Safety Committee (MSC) met and recommended that the AIS carriage timeline be accelerated, in addition to several other security-related initiatives, which are discussed in separate interim rules published elsewhere in today's
In May 2002, the Maritime Safety Committee met and accepted amendments to SOLAS related to the accelerated AIS implementation (including several phase-in options), for consideration at a December 2002 Diplomatic Conference. The Diplomatic Conference convened in December 2002 and adopted the phased-in AIS carriage schedule as described in Table 1 below.
This interim rule implements this revised SOLAS schedule, as it concerns vessels on international voyage, and through a separate notice titled “Automatic Identification System; Expansion of Carriage Requirements for U.S. Waters” [USCG-2003-14878], published elsewhere in today's
The Coast Guard received some unfavorable comments regarding AIS carriage (
The AIS integrates a number of technologies to enhance the safe and efficient navigation of ships, protection of the environment, operation of VTS, and maritime domain awareness. AIS does this by providing ship-to-ship information for collision avoidance, and ship-to-shore information about a ship and its cargo for traffic management and increased maritime awareness. Included in these technologies are Global Navigation Satellite System, frequency agile digital very high frequency transceivers, self-organizing communications protocols, and an architecture that allows input from and output to other shipborne navigational equipment (for example, input from rate of turn indicator and heading sensor; output to radar or electronic chart display systems). Data from these technologies can be tailored to the mariner's needs and desires. The automated operation of the AIS and the reduction of voice interactions should enhance mariners' ability to navigate. More than 5 million voice reports a year will be eliminated in existing VTS areas alone by using AIS.
The AIS transmits and receives vessel information in near real-time from other ships and rebroadcasts from shore stations, such as—
(1)
(2)
(3)
The AIS provides mariners with accurate navigation information. In addition, shore stations will be able to
AIS tests and trials have been conducted by national maritime safety administrations in a number of locations around the world including Germany, Sweden, Finland, Singapore, South Korea, British Columbia, the Panama Canal, the St. Lawrence Seaway, the Baltic Sea, South Africa, and the Rhine River. The Coast Guard has conducted numerous tests and simulations to identify various technical and operational issues, such as the shoreside communications infrastructure required to support full duplex operations; unit reliability, development of operational procedures appropriate to an AIS-based VTS; and identification of user requirements for graphical display functionality.
In August 1998, the Coast Guard leased 50 early-generation (Digital Selective Calling (DSC) ITU-R M.825-3 version) transponders that were evaluated aboard a variety of platforms. The principal purpose of this testing was to evaluate the performance of a DSC-based system and identify any operational and technical problems that would have to be resolved before implementation of the latest AIS technology (ITU-R M. 1371-1 version).
This is not the first experience with AISs for the Coast Guard and the maritime industry. Since July 1994, tankers operating in the Prince William Sound area have carried DSC transponders that report to the VTS.
The DSC transponder system used in Prince William Sound is a one-way system of limited capability, flexibility and potential. The VTS at Prince William Sound remains dependent on radar and very high frequency voice radio communications and is, in essence, a traditional VTS augmented by a DSC system. Despite the reduced capability of this type of transponder, it has proven valuable and has demonstrated its potential as the foremost VTS surveillance sensor.
The key difference between the DSC-based identification system used in VTS Prince William Sound and the one required by this interim rule is that the former only provides ship-to-shore (VTS) transmissions of position data. The AIS technology being required ensures two-way communication, radio frequency agility, greater capacity, non-proprietary display interface standards, and a host of display possibilities, including Electronic Chart Display Information System, Automatic Radar Plotting Aid (ARPA), non-ARPA radar, Electronic Chart System, Integrated Navigation System, or other proprietary graphical user interfaces. See Technical Comparison Table 2.
As evidenced by the number of navigation systems currently in use, there is great interest in using technology to improve navigational safety and maritime domain awareness. However, to correctly add beneficial traffic information while also meeting the user demand to avoid a multiplicity of incompatible systems, standardization was needed. Without standardization, an AIS could not operate effectively or achieve its maximum potential.
Failure to adopt international standards would create a proliferation of disparate units, with no guarantee that devices offered by various manufacturers would be interoperable. In fact, the DSC installation discussed in the
The key differences between previous technologies and AISs are that the latter allows for reliable Self-Organizing Time-Division Multiple Access, two-way communication, radio frequency agility, greater capacity, and a host of display possibilities. For these reasons, implementing international standards for AIS was a high priority for the Coast Guard.
Recognizing the need to take advantage of this technology, the Coast Guard has embarked in a major capitalization effort to upgrade all existing and future VTSs with AIS capability.
The Ports and Waterways Safety System is an effort to establish a national transportation system that collects, processes, and disseminates information on the marine operating environment and maritime vessel traffic in major U.S. ports and waterways.
The VTS mission is to monitor and assess vessel movements, exchange information regarding vessel movements with other vessels and shore-based personnel, and provide advisories to vessel Masters. The AIS coverage capability and precision compared to other surveillance technology (
A major goal of the Ports and Waterways Safety System is to apply AIS and other technologies that enable information gathering and dissemination in ways that do not create an additional operational burden for the mariner. An AIS-based VTS will augment the mariner's navigational capability through automatic and effortless broadcast of vessel traffic data, navigational advisories, and safety alerts. Through AIS-based VTS technology and this rulemaking, we can maximize the benefits of our vessel traffic management mission, provide the same or more services, and enhance navigation.
Each VTS has a Vessel Traffic Center (VTC) that will receive vessel movement data from an AIS in addition to radar and CCTV, if so equipped. An AIS-based VTS reduces the need for voice interactions, expands situational awareness, and augments the VTS role to assist mariners in the performance of their duties, thus mitigating the risk of collisions.
We have started this upgrade process and expect to complete it for the following VTS ports by 2005: Berwick Bay, LA; Houston-Galveston, TX; Port Arthur, TX; New Orleans, LA; New York, NY; San Francisco, CA; Prince William Sound, AK; Puget Sound, WA; and St. Marys River, MI. As these VTSs become AIS-capable, per the schedule established today in 33 CFR 164.46, the Coast Guard will eliminate VTS Users voice position reports and rely upon AIS broadcasting. We will require all VTS Users within a VTS to use an AIS.
Given the reduced infrastructure needs of an AIS and associated cost and operational efficiency, the Coast Guard intends to expand AIS surveillance to other VMRS areas, such as the approaches to Los Angeles and Long Beach Harbors, which is jointly operated by the Coast Guard and the Southern California Marine Exchange (under the California Code of Regulations, 14 CCR 852.20 through 852.30). Other VMRS areas are envisioned and would be the subject of future rulemakings. However, the Coast Guard in this interim rule defines VMRS centers, areas, and users to distinguish them from VTS centers, areas, and users. This will allow the Coast Guard to have monitoring capabilities in areas that may not warrant the full interactivity of a VTS (that is, informational, navigation assistance and active traffic organization services), but that do warrant the Captain of the Port's (COTP's) vigilance and greater situational awareness. It would also provide the COTPs a more effective means to carry out their duties and communicate with vessels reporting from within a vessel monitoring system area, and thus enhance their maritime domain awareness.
We have long recognized that use of AIS on the nation's navigable waters is a valuable asset to all mariners. In the past, many in the maritime community have noted that to have a successful VTS, the Coast Guard must strive to meet the needs of the users while imposing minimal burden, especially in terms of voice communications.
In 1997, the Coast Guard benefited from a national dialog conducted by the Marine Board of the National Academies and its Committee on Maritime Advanced Information Systems and
The Coast Guard also recognizes that wider implementation of a surveillance capability is imperative to maritime domain awareness and homeland security. Thus, it is moving forward with AIS capability as a component of our nation's marine distress system network-Rescue 21. Therefore, the Coast Guard wishes to avail itself of this opportunity to seek comments, via the Notice accompanying this interim rule published elsewhere in today's
This interim rule amends Vessel Bridge-to-Bridge Radiotelephone Regulations in 33 CFR part 26, Vessel Traffic Management regulations in part 161, Navigation Safety Regulations, in part 164, and the Prince William Sound, Alaska regulated navigation area regulations in 33 CFR 165.1704. We are making the following changes to existing regulations.
We are deleting Table 26.03(f) and directing the reader to newly designated Table 161.12(c) for the same information.
We are adding two definitions in § 161.2—”navigable waters” and “Vessel Movement Center”; and revising definitions for “Vessel Movement Reporting System”; and “Vessel Movement Reporting System User” to distinguish them from “Vessel Traffic Service”, “Vessel Traffic Centers”, and “Vessel Traffic Service Users”. Vessels within a VTS receive a host of services (
We are amending the Table 161.12(b), and redesignating it as Table 161.12(c) to reflect existing VTS and VMRS areas and their call signs, designated frequencies, and clarifying Notes.
We are revising § 161.21 to establish a mandatory reporting and broadcast requirement via AIS in denoted VMRS areas. The current regulation has a voice reporting exemption for those vessels carrying AISSE in VTS areas capable of receiving such reports, such as VTS Prince William Sound (where the AISSE
We are deleting the Sailing Plan Deviation Report in § 161.21, but we are still requiring this information in the general reporting requirements in § 161.18.
Throughout subpart B, we are adding “VMRS” after “VTS” to show that the provisions of this subpart can apply to either a VTS and or a VMRS.
We are adding a paragraph to § 164.01 to note that § 164.46 applies to some vessels less than 1600 gross tons, and we are revising § 164.01(c) to add § 164.46 to the list of sections not applicable to U.S. public vessels.
We are revising § 164.02 to reflect that the AIS requirement in part 164 applies to vessels subject to SOLAS Chapter V, Regulation 19.2.4.
We are amending § 164.03, the “Incorporation by Reference” section, by adding the IMO's MSC AIS performance standard (MSC.74(69)), the ITU AIS technical standard (ITU-R M.1371-1), the IMO AIS shipborne installation guidelines (SN/Circ.277), the SOLAS 2000 Amendments and SOLAS 2002 Amendments (Conference resolution 1), and the IEC AIS certification and testing standard (IEC 61993-2).
We are renaming § 164.43 as “Automatic Identification System Shipborne Equipment—Prince William Sound,” and embedded an expiration date. We are adding new § 164.46 “Automatic Identification System (AIS)” to address applicability, operation, placement, and use of AIS units. In addition, we are extending AIS applicability to all vessels subject to SOLAS; to commercial vessels 65 feet or more in length not subject to SOLAS on an international voyage; and to other commercial vessels required to participate in a VTS or VMRS (these vessels are all passenger vessels certificated to have 50 or more passengers on board and every vessel subject to Vessel Bridge-to-Bridge Radiotelephone Act).
Given the similarities between vessel bridge-to-bridge radiotelephone and AIS, the usage, maintenance, and language requirements in 33 CFR 26.04(a) and (c), 26.05, 26.06, and 26.07 for Vessel Bridge-to-Bridge Radiotelephones, will also apply to AIS. We are also clarifying that proper maintenance includes accurate and timely, data entry and transmission. For vessels over 1600 gross tons, we are requiring the AIS Pilot Plug be readily available, placed at the conning position, and near an AC power outlet.
The use of portable AIS units on vessels will be permissible only if such use does not interfere with other installed navigation and communications systems, and, such that only one unit be in operation at a time.
In § 165.1704, we are amending the AISSE carriage requirement for tankers in Prince William Sound, so that it expires, and thus reverts to the AIS requirement, on July 1, 2004.
The Director of the Federal Register has approved the material in § 164.03 for incorporation by reference under 5 U.S.C. 552 and 1 CFR part 51. You may inspect this material at U.S. Coast Guard Headquarters where indicated under
This interim rule is not economically significant, however, it is a “significant regulatory action” under Executive Order 12866, and has been reviewed by the Office of Management and Budget (OMB). It is also significant under the regulatory policies and procedures of the Department of Homeland Security due to significant public interest. A more detailed Regulatory Assessment is available in the docket as indicated under
The interim rule is requiring the carriage of an AIS on all U.S. flag SOLAS vessels, certain domestic vessels in VTS areas, and foreign flag vessels less than 300 gross tonnage that make ports of call in the United States. We estimate that 438 U.S. flag SOLAS vessels, 4,121 non-SOLAS domestic vessels, and 70 non-SOLAS foreign vessels will be affected by the interim rule. These include the following:
(1) Vessels subject to SOLAS;
(2) All commercial, self-powered vessels of 65 feet or more in length in VTS areas, including fishing vessels;
(3) Most passenger vessels in VTS areas;
(4) All dredges and floating plants engaged in operations in VTS areas;
(5) Certain commercial towing vessels of 26 feet or more in length in VTS areas; and
(6) Non-SOLAS foreign flag vessels that are 65 feet or more in length that make port calls at any U.S. port.
The estimated cost of complying with the interim rule for domestic vessels is Present Value (PV) $66 million (2003-2012, 7 percent discount rate). Approximately PV $5 million of this total is attributable to U.S. flag SOLAS vessels. The remaining PV $61 million is attributable to domestic vessels (non-SOLAS) that are affected. In the first year of compliance, the cost of purchasing and installing equipment and training personnel is an estimated $40 million (non-discounted, $2 million for the U.S. flag SOLAS fleet, $38 million for the domestic fleet). Following initial implementation, the annual cost of compliance is an estimated $1 million (non-discounted, $0.1 million for the U.S. flag SOLAS fleet, $0.9 million for the domestic fleet).
Non-SOLAS foreign flag vessel costs attributed to this rule are not included in the domestic cost calculations but are still considered here. The PV cost for these vessels to comply with the interim rule is estimated at $1 million over the 10-year period. The initial cost of purchasing and installing equipment and training personnel is an estimated $0.6 million (non-discounted). Following the initial implementation, the annual cost of compliance is less than $0.1 million (non-discounted).
The Coast Guard expects both quantifiable and non-quantifiable benefits as a result of the interim rule. Quantified benefits include avoided property damage, injuries, fatalities, and pollution events as a result of having an AIS. Other benefits include better situational awareness, better information, and better communications. The interim rule will also enhance Coast Guard missions such as marine safety and security, aids to navigation, and maritime mobility.
In order to quantify the benefits of AIS implementation, the Coast Guard reviewed thousands of Marine Casualty Incident Reports (MCIRs) from 1993-1999 that involved the vessel populations affected by this interim rule. These incidents were used to develop a historical rate of marine casualties in VTS areas to determine the effectiveness of AIS as a mitigating factor. The estimated safety benefit of the interim rule is PV $25 million (2003-2012, 7 percent discount rate). Approximately PV $13 million is attributable to U.S. flag SOLAS vessels. The remaining PV $12 million is attributable to domestic vessels (non-SOLAS). The estimated average annual benefit is $5 million (non-discounted).
The costs of this interim rule are presented for a 10-year period. The Regulatory Assessment available in the public docket for this rulemaking
This interim rule is one of six interim rules that implement national maritime security initiatives concerning general provisions, Area Maritime Security (ports), vessels, facilities, Outer Continental Shelf (OCS) facilities, and AIS. The Coast Guard used the National Risk Assessment Tool (N-RAT) to assess benefits that would result from increased security for vessels, facilities, OCS facilities, and ports. The N-RAT considers threat, vulnerability, and consequences for a host of maritime entities in various security-related scenarios. For a more detailed discussion on the N-RAT and how we employed this tool, refer to “Applicability of National Maritime Security Initiatives” in the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
We recognize that the interim rules are a “family” of rules that will reinforce and support one another in their implementation. We have ensured, however, that risk reduction that is credited in one rulemaking is not also credited in another. For a more detailed discussion on the benefit assessment and how we addressed the potential to double-count the risk reduced, refer to “Benefit Assessment” in the interim rule titled “Implementation of National Maritime Security Initiatives” (USCG-2003-14792) published elsewhere in today's
We determined annual risk points reduced for each of the six interim rules using the N-RAT. The benefits are apportioned among the Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in Table 3, the implementation of AIS for the affected population reduces 1,553 risk points annually through 2012. The benefits attributable for part 101—
Once we determined the annual risk points reduced, we discounted these estimates to their present value (7 percent discount rate, 2003-2012) so that they could be compared to the costs. We presented cost effectiveness, or dollars per risk point reduced, in two ways: first, we compared the first-year cost and first-year benefit because first-year cost is the highest in our assessment as companies develop security plans and purchase equipment. Second, we compared the 10-year PV cost and the 10-year PV benefit. The results of our assessment are presented in Table 4.
Although we have quantified these security benefits relative to AIS, the N-RAT is limited in its ability to measure benefits attributable to intelligence or information gathering. These limitations are discussed in the
Congress mandated an AIS carriage requirement on domestic (non-SOLAS) vessels in 46 U.S.C. 70114, and provided an explicit phase-in schedule for AIS in section 102(e) of the MTSA. Strictly upon consideration of monetized safety benefits, as measured through decreased collisions and the resulting decrease in injuries, mortalities, and pollution incidents, the cost of AIS installation for the domestic fleet far outweighs the benefit over a 15-year period (0.26 benefit-cost ratio). This ratio results from the high costs of purchasing and installing the unit (an estimated $9,330 per vessel), and the types of marine casualties that AIS is expected to mitigate, where damage is not usually severe nor is there significant loss of life. In view of the
Because there is not yet a mass market for AIS, the cost per unit in the next few years, when the domestic fleet is required to purchase AIS, is likely to be higher than when it is replaced (around 2012). Because the AIS market is in its infancy, we cannot estimate how much the unit cost will decrease over the next decade. If many manufactures enter the market, costs are likely to drop through competition. Because manufacturers have a potential world market and a significant U.S. market, many may attempt to capture a segment. Conversely, if only a few players emerge worldwide, AIS costs could remain high. Because manufacturers must engage in a rigorous approval process and cannot be assured that they will recoup research and development costs through unit sales, there is the potential that only a few dominant players will emerge in the AIS market. Because we cannot determine the trend of the AIS market, and we did not want to understate the cost for AIS, we assumed that the cost for units in 2012 would again be approximately $9,000 per unit. It is possible that an AIS unit will not be this expensive to replace.
In terms of security, we estimated that we will not experience a significant benefit from a decrease in risk, as measured in risk points reduced in the N-RAT, as a result of AIS installation. There are two primary reasons for this estimate. First, the N-RAT was an internal Coast Guard tool that was modified to estimate the national benefits attributable to the suite of security rulemakings mandated by the MTSA. The tool was not designed to measure the security benefits of AIS specifically. The N-RAT does not, therefore, robustly capture the risk mitigation potential of AIS. Secondly, the Coast Guard strongly believes that AIS is critical to maritime domain awareness. We are unable to quantify or monetize the benefits of this Coast Guard mission or the individual contribution of AIS.
While the monetized benefit of the rule does not exceed its cost, the Coast Guard believes that AIS has the potential to mitigate a Transportation Security Incident (TSI) as described in the MTSA. The Coast Guard recognizes that a single sensor, such as AIS, will not likely prevent a TSI alone—but if AIS can have a mitigating effect on just a single TSI, the security benefit could be significant. The Coast Guard must consider AIS in its suite of security rulemakings and has developed an interim rulemaking that considers the mandates of the MTSA in light of the high initial costs of purchasing the unit, by requiring AIS in VTS areas only for the domestic fleet. We are concentrating our efforts in VTS areas, since this is where we can begin accruing the most benefit—for industry, the public, and the Coast Guard—in the shortest period of time. Through our interim rulemaking, we are attempting to maximize the return to our investment as quickly as practical.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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. This rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this rule is exempt, we have reviewed it for potential economic impacts on small entities. An Initial Regulatory Flexibility Analysis discussing the impact of this rule on small entities is available in the docket where indicated under
Of the affected population, we estimate that 205 U.S. flag SOLAS vessels, of 438 total, are owned by 122 small businesses. Approximately 40 large companies own the remaining 233 U.S. flag SOLAS vessels.
We estimate the cost of an AIS per vessel in the first year will be $9,330. Of this, $7,000 is for the AIS unit, $2,000 is for installation, and $330 is for mariner training. We estimate that following installation, each AIS will require $250 in annual maintenance to replace such items as the antenna, keyboard, and display screen. The entire unit will be replaced after 8 years.
We found that annual maintenance costs will have a less-than-1-percent impact on annual revenue for all small businesses with U.S. flag SOLAS vessels. First-year impacts to small businesses, therefore, are the focus of this assessment. To estimate the revenue impact on small businesses in the first year, the cost per vessel for an AIS, $9,330, is multiplied by the number of vessels owned by each company, then divided by the average annual revenue for each company, as reported in the online databases noted above. Of the 122 small businesses that own U.S. flag SOLAS vessels, we found revenue for 59 of them (48 percent). If we could not find revenue data for a business, we assumed the business was small. For the remaining 63 small entities without revenue data, we expanded the revenue impacts from the known 59 companies. For example, if 73 percent of 59 small entities (43 entities) had a 0-3 percent impact on their average annual revenues, then 73 percent of 63 small entities (47 entities) had a 0-3 percent impact, for a total of 90 small entities with an annual revenue impact of 0-3 percent. Table 5 presents the revenue impact for the 59 entities with known average annual revenue and the expanded results for the 63 entities without revenue information.
We estimate that there are 1,491 small businesses that will be affected by the interim rule that own non-SOLAS vessels that transit VTS areas. These 1,491 companies own 2,360 vessels, representing 57 percent of the 4,121 non-SOLAS vessels affected by the rule. An estimated 1,456 vessels (35 percent) are owned by 150 large businesses, and 55 vessels (1 percent) are owned by State and local governments. We have 248 vessels that transit VTS areas (7 percent of the non-SOLAS fleet) that have no company associated with the vessel whatsoever, due to missing company information in our data. We cannot be certain if these vessels belong to small, large, or government entities and do not apportion these 248 vessels to one type of entity or another.
As with the U.S. flag SOLAS fleet, annual cost following installation of an AIS will have little impact on annual revenues—a less-than-1-percent impact on annual revenue for most small businesses. The first-year cost of the interim rule, therefore, will again have the greatest impact on average annual revenue. To estimate the revenue impact on small businesses in the first year, the cost per vessel for an AIS, $9,330, multiplied by the number of vessels owned by each company, then divided by the average annual revenue for each company. Of the 1,491 small businesses that own non-SOLAS vessels in VTS areas, we found revenue for 453 of them (30 percent). As with the assessment for the U.S. flag SOLAS fleet, if we could not find revenue data for a business, we assumed the business was small. For the remaining 1,038 small entities without revenue data, we expanded the revenue impacts for the known 453 companies. The results of the assessment for the non-SOLAS fleet in VTS areas are presented in Table 6.
As shown, the interim rule will have a less-than-3-percent impact on 74 percent of small businesses in the first year it is in effect. Approximately 92 percent have a less-than-10-percent impact. We conclude, therefore, that the interim rule may have a significant economic impact on a substantial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Jorge Arroyo (G-MWV) by telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or electronic mail
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 of 1995 (44 U.S.C. 3501-3520). The reports required by this rule are considered to be operational communications, transitory in nature, and, therefore, do not constitute the collection of information under the Paperwork Reduction Act.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled, now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. In addition, under the authority of Title I of the Ports and Waterways Safety Act, 33 U.S.C. 1221-1232 (specifically 33 U.S.C. 1223) and the MTSA our regulation will preempt any State action on the subject of automatic identification system carriage requirements. (See the decision of the Supreme Court in the consolidated cases of
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their regulatory actions not specifically required by law. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100 million or more in any one year. We do discuss the effects of this interim rule elsewhere in this preamble. However, this interim rule is exempted from assessing the effects of the regulatory action as required by the Act because it is necessary for the national security of the United States (2 U.S.C. 1503(5)).
This interim rule will 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 interim 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 has analyzed this interim rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This interim 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 interim rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments, however, on how this interim rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.
We have analyzed this interim 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 an economically significant regulatory action and is therefore not likely to have a significant adverse effect on the supply, distribution, or use of energy even though it is a “significant regulatory action” under Executive Order 12866. 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 Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The Act also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We have assessed the potential effect of this interim rule and have determined that it is not likely to create substantial obstacles to the foreign commerce of the United States because we are implementing an international standards (IEC/IMO/ITU). In addition, because these regulations are being put in place in order to further a legitimate domestic objective, namely to increase the safety of vessels and the security of the United States, any obstacles created by the regulation are not considered unnecessary obstacles.
We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraphs (34)(d), (34)(e), and (34)(i) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This interim rule concerns vessel equipment requirements that will contribute to higher levels of marine safety and maritime domain awareness for U.S. ports and waterways. A “Categorical Exclusion Determination” is available in the docket where indicated under
This rulemaking will not significantly impact the coastal zone. Further, the rulemaking and the execution of this rule will be done in conjunction with appropriate State coastal authorities. The Coast Guard will, therefore, comply with the requirements of the Coastal Zone Management Act while furthering its intent to protect the coastal zone.
Communications equipment, Marine safety, Radiotelephone, Vessels.
Harbors, Navigation (water), Reporting and recordkeeping requirements, Vessels, Waterways.
Incorporation by reference, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
14 U.S.C. 2; 33 U.S.C. 1201-1208; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170; Rule 1, International Regulations for the Prevention of Collisions at Sea.
33 U.S.C. 1223, 1231; 46 U.S.C. 70114, 70117; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.
(c) When not exchanging voice communications, a VTS User must maintain a listening watch as required by § 26.04(e) of this chapter on the VTS frequency designated in Table 161.12(c) (VTS and VMRS Centers, Call Signs/MMSI, Designated Frequencies, and Monitoring Areas). In addition, the VTS User must respond promptly when hailed and communicate in the English language.
As stated in 47 CFR 80.148(b), a very high frequency watch on Channel 16 (156.800 MHz) is not required on vessels subject to the Vessel Bridge-to-Bridge Radiotelephone Act and participating in a Vessel Traffic Service (VTS) system when the watch is maintained on both the vessel bridge-to-bridge frequency and a designated VTS frequency.
Unless otherwise stated, the provisions of this subpart apply to the following vessels and VMRS Users:
As used in this subpart:
(d) A vessel must report:
(1) Any significant deviation from its Sailing Plan, as defined in § 161.19, or from previously reported information; or
(2) Any intention to deviate from a VTS issued measure or vessel traffic routing system.
(a) Unless otherwise directed, vessels equipped with an Automatic Identification System (AIS) are required to make continuous, all stations, AIS broadcasts, in lieu of voice Position Reports, to those Centers denoted in Table 161.12(c) of this part.
(b) Should an AIS become non-operational, while or prior to navigating a VMRS area, it should be restored to
(1) Notify the Center;
(2) Make voice radio Position Reports at designated reporting points as required by § 161.20(b) of this part; and
(3) Make any other reports as directed by the Center.
33 U.S.C. 1223, 1231; 46 U.S.C. 2103, 3703, 70114, 70117; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170. Sec. 164.13 also issued under 46 U.S.C. 8502. Sec. 164.61 also issued under 46 U.S.C. 6101.
(d) Provisions of § 164.46 apply to some self-propelled vessels of less than 1600 gross tonnage.
(b) * * *
3, rue de Varemb, Geneva, Switzerland.
Publication Section, 4 Albert Embankment, London SE1 7SR, United Kingdom.
Place de Nations, CH-1211 Geneva 20 Switzerland.
(a) The following vessels must have an installed, operational AIS that complies with the IMO Resolution MSC.74(69), ITU-R Recommendation M.1371-1, and IEC 61993-2, and that is installed using IMO SN/Circ.277 (Incorporated by reference, see § 164.03) as of the date specified. “Length” refers to “registered length” as defined in 46 CFR, part 69.
(1) Self-propelled vessels of 65 feet or more in length engaged in commercial service and on an international voyage, not later than December 31, 2004.
(2) Notwithstanding paragraph (a)(1) of this section, the following vessels subject to the International Convention for Safety at Life at Sea, 1974, (SOLAS) as amended, that are on an international voyage must also comply with SOLAS, chapter V, as amended by SOLAS 2000 Amendments and Conference resolution 1 (Incorporated by reference, see § 164.03):
(i) Passenger vessels, of 150 gross tonnage or more, not later than July 1, 2003;
(ii) Tankers, regardless of tonnage, not later than the first safety survey for safety equipment on or after July 1, 2003;
(iii) Vessels, other than passenger vessels or tankers, of 50,000 gross tonnage or more, not later than July 1, 2004; and
(iv) Vessels, other than passenger vessels or tankers, of 300 gross tonnage or more but less than 50,000 gross tonnage, not later than the first safety survey for safety equipment on or after July 1, 2004, but no later than December 31, 2004.
(b) Notwithstanding paragraphs (a)(1) and (a)(2) of this section, the following vessels, transiting an area listed in table 161.12(c) of § 161.12 of this part.
(1) Each self-propelled vessel of 65 feet or more in length, engaged in commercial service;
(2) Each towing vessel of 26 feet or more in length and more than 600 horsepower;
(3) Each vessel of 100 gross tons or more carrying one or more passengers for hire; and
(4) Each passenger vessel certificated to carry 50 or more passengers for hire.
(c) The vessels listed in paragraph (b) of this section must comply according to the following schedule:
(1) For VTS St. Marys River, not later than December 31, 2003;
(2) For VTS Berwick Bay, VMRS Los Angeles/Long Beach, VTS Lower Mississippi River, VTS Port Arthur and VTS Prince William Sound, not later than July 1, 2004; and
(3) For VTS Houston-Galveston, VTS New York, VTS Puget Sound, and VTS San Francisco, not later than December 31, 2004.
(d) The requirements for Vessel Bridge-to-Bridge radiotelephones in §§ 26.04(a) and (c), 26.05, 26.06 and 26.07 of this chapter, also apply to AIS. The term “effective operating condition” used in § 26.06 includes accurate input and upkeep of all AIS data fields, including estimated time of arrival, destination, and number of people on board.
(e) The use of a portable AIS is permissible, only to the extent that electromagnetic interference does not affect the proper function of existing navigation and communication equipment on board, and such that only one AIS unit may be in operation at any one time.
(f) The AIS Pilot Plug, on each vessel over 1,600 gross tons, on international voyage, shall be available for pilot use, easily accessible from the primary conning position of the vessel, and near an AC power receptacle.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.
Coast Guard, DHS.
Notice; request for comments.
The Maritime Transportation Security Act of 2002 requires certain vessels to carry an Automatic Identification System. In an interim rule published elsewhere in today's
Comments and related material must reach the Docket Management Facility on or before September 29, 2003.
To make sure that your comments and related material are not entered more than once in the docket, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility (USCG-2003-14878), U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Docket Management Facility maintains the public docket for this notice. Comments and material received from the public will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
If you have questions on this notice, contact Mr. Jorge Arroyo, Office of Vessel Traffic Management (G-MWV-1), U.S. Coast Guard Headquarters, telephone: 202-267-6277, fax: 202-267-4826 or e-mail:
We encourage you to participate by submitting comments and related material. If you do so, please include your name and address, identify the docket number [USCG-2003-14878], indicate the specific question of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under
Note, matters pertaining to AIS licensing, equipment certification, and frequencies are subject to Federal Communications Commission regulations and are not addressed in this notice, see FCC Public Notice DA 02-1362 in the docket for further information.
The Maritime Transportation Security Act of 2002 (MTSA), Public Law 107-295, was enacted November 25, 2002, and requires that four specific categories of vessels be equipped with and operate an Automatic Identification System (AIS). These categories are—
1. Self-propelled commercial vessels 65 feet or more in length;
2. Vessels carrying more than a number of passengers for hire determined by the Secretary of the agency in which the Coast Guard is operating;
3. Towing vessels of more than 26 feet in length and 600 horsepower; and
4. Other vessels for which the Secretary determines AIS is necessary for safe navigation of the vessel. (46 U.S.C. 70114(a)(1)(A)-(D)).
Under the MTSA, vessels that must be equipped with AIS must use it in all navigable waters of the United States, unless the Secretary finds that AIS is not needed for safe navigation on specified navigable waters. If such a finding is made, the Secretary may waive the AIS requirements in those waters (46 U.S.C. 70114(a)(2)(B)). The MTSA also allows the Secretary to exempt a vessel from the AIS requirement if the Secretary finds that AIS is not necessary for the safe navigation of the vessel on the waters on which the vessel operates (46 U.S.C. 70114(a)(2)(A)).
In an interim rule published elsewhere in today's
(1) Vessels subject to the International Convention for the Safety of Life at Sea, 1974, (SOLAS) and on international voyage, under the schedule set forth in SOLAS chapter V, regulation 19.2.4;
(2) Vessels not subject to SOLAS that are 65 feet or more in length, in commercial service and on an international voyage, by December 31, 2004; and
(3) The following Vessel Traffic Service (VTS) and Vessel Movement Reporting System (VMRS) users:
(i) Self-propelled vessels of 65 feet or more in length, in commercial service;
(ii) Towing vessels 26 feet or more in length and more than 600 horsepower;
(iii) Vessels of 100 gross tons or more carrying one or more passengers for hire; and
(iv) Passenger vessels certificated to carry 50 or more passengers for hire.
These vessels must comply: by December 31, 2003, within VTS St. Marys River; by July 1, 2004, within VTS Berwick Bay, VMRS Los Angeles/Long Beach, VTS Lower Mississippi River, VTS Port Arthur and VTS Prince William Sound; by December 31, 2004, within VTS Houston-Galveston, VTS New York, VTS Puget Sound, and VTS San Francisco.
The Coast Guard recognizes the benefits of AIS and has been a leading
Our AIS interim rule (USCG-2003-14757), published elsewhere in today's
The process of deploying this technology into all existing and future VTS areas is well underway. The Coast Guard intends to expand the safety and security benefits of AIS by extending the shore-tracking surveillance capability throughout our Nation's waterways as a major element of maritime domain awareness and homeland security.
Design and installation of the expanded capability is underway but not yet fully operational. Therefore, we want to take this opportunity to ask some questions of the public to (1) assist us in developing an overall AIS strategy, and (2) address expanded carriage of AIS beyond SOLAS vessels, VTS and VMRS areas, and certain other commercial and non-commercial vessels that are omitted from the AIS interim rule (USCG-2003-14757) published elsewhere in today's
We need the public's assistance in answering the following questions, and any additional information provided on this topic is welcome. In responding to each question, please explain your reasons for each answer as specifically as possible so that we can carefully weigh the consequences and impacts of any future actions we may take.
In preparing your response to these questions, please indicate your position in the maritime industry as well as the type of vessel, cargo, and charter agreement specific to your situation, if applicable.
(1) Recognizing that AIS may ultimately be required on all navigable waters, what particular waterways or ports should be implemented before others?
(2) Are there particular waterways where the AIS requirements should be waived? Why?
(3) AIS is not specifically mandated (by the MTSA) on all vessels. The MTSA, however, does allow the Secretary to require AIS on any vessel if deemed necessary for safe navigation. Should other vessels (
(4) SOLAS expects nations to implement their AIS carriage on their domestic fleet (vessels over 500 gross tonnage and passenger vessels not on international voyage) not later than July 1, 2008. However, the MTSA requires AIS by December 31, 2004. Knowing this, should certain vessels be granted temporary exemptions regarding the compliance dates in MTSA?
(5) Under what circumstances, if any, should a vessel be exempted from the AIS requirements per the MTSA exemption?
(6) SOLAS defines a passenger vessel as carrying 12 or more passengers. VTS regulations define VTS users as passenger vessels over 100 gross tons carrying 1 or more passengers or those certificated to carry 50 or more passenger. The MTSA allows the Secretary to determine the threshold number of passengers when determining which passenger vessels are required to have AIS. Should we expand AIS carriage beyond what is already defined in SOLAS and our rule?
(7) Should the Coast Guard encourage or require the use of systems such as electronic chart display and information system (ECDIS) and electronic chart system (ECS) to display AIS information to enhance navigation safety? Are there other systems that could be used for this purpose?
(8) Would you be more likely to install an ECDIS or ECS on your vessel, to display AIS information, if the system could be used to comply with an existing requirement to carry nautical charts?
As noted previously, comments regarding these questions, and any other pertinent matters brought to our attention during the comment period, will be taken into account in our future actions regarding the issues raised by these questions.
The Coast Guard is considering having two public meetings on this topic, in addition to the public meeting announced in the AIS interim rule, published elsewhere in today's
Department of Defense.
Final rule.
This rule implements policy, assigns responsibilities, and prescribes procedures under the United States Constitution, Article II, section 2 and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” for trials before military commissions of individuals subject to the President's Military Order. These procedures shall be implemented and construed so as to ensure that any such individual receives a full and fair trial before a military commission, as required by the President's Military Order. Unless otherwise directed by the Secretary of Defense, and except for supplemental procedures established pursuant to the President's Military Order or this part, the procedures prescribed herein and no others shall govern such trials.
March 21, 2002.
Office of Military Commission Spokesperson, 703-693-1115.
Although exempt from administrative procedures for rulemaking, publication of the final rule in the
It has been certified that 32 CFR part 9 is as a military function of the United States and exempt from administrative procedures for rulemaking.
It has been certified that 32 CFR part 9 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under section 3, para (d)(2).
It has been certified that 32 CFR part 9 does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 9 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 44).
It has been certified that 32 CFR part 9 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the national government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
5 U.S.C. 552(1)(a)(1)(C) and (D).
This part implements policy, assigns responsibilities, and prescribes procedures under the United States Constitution, Article II, section 2 and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (3 CFR, 2001 comp., p. 918, 66 FR 57833), for trials before military commissions of individuals subject to the President's Military Order. These procedures shall be implemented and construed so as to ensure that any such individual receives a full and fair trial before a military commission, as required by the President's Military Order. Unless otherwise directed by the Secretary of Defense, and except for supplemental procedures established pursuant to the President's Military Order or this part, the procedures prescribed herein and no others shall govern such trials.
In accordance with the President's Military Order, the Secretary of Defense or a designee (“Appointing Authority”) may issue orders from time to time appointing one or more military commissions to try individuals subject to the President's Military Order and appointing any other personnel necessary to facilitate such trials.
(a) Over persons. A military commission appointed under this part (“Commission”) shall have jurisdiction over only an individual or individuals (“the Accused”):
(1) Subject to the President's Military Order; and
(2) Alleged to have committed an offense in a charge that has been referred to the Commission by the Appointing Authority.
(b)
(c)
(a)
(2)
(3)
(4)
(5)
(ii) The Presiding Officer shall ensure that the discipline, dignity, and decorum of the proceedings are maintained, shall exercise control over the proceedings to ensure proper implementation of the President's Military Order and this part, and shall have authority to act upon any contempt or breach of Commission rules and procedures. Any attorney authorized to appear before a Commission who is thereafter found not to satisfy the requirements for eligibility or who fails to comply with laws, rules, regulations, or other orders applicable to the Commission proceedings or any other individual who violates such laws, rules, regulations, or orders may be disciplined as the Presiding Officer deems appropriate, including but not limited to revocation of eligibility to appear before that Commission. The Appointing Authority may further revoke that attorney's or any other person's eligibility to appear before any other Commission convened under this part.
(iii) The Presiding Officer shall ensure the expeditious conduct of the trial. In no circumstance shall accommodation of counsel be allowed to delay proceedings unreasonably.
(iv) The Presiding Officer shall certify all interlocutory questions, the disposition of which would effect a termination of proceedings with respect to a charge, for decision by the Appointing Authority. The Presiding Officer may certify other interlocutory questions to the Appointing Authority as the Presiding Officer deems appropriate.
(b)
(2)
(A) Military Officers who are judge advocates of any United States armed force, or
(B) Special trial counsel of the Department of Justice who may be made available by the Attorney General of the United States.
(ii) The duties of the Prosecution are:
(A) To prepare charges for approval and referral by the Appointing Authority;
(B) To conduct the prosecution before the Commission of all cases referred for trial; and
(C) To represent the interests of the Prosecution in any review process.
(c)
(2)
(i) To defend the Accused zealously within the bounds of the law without regard to personal opinion as to the guilt of the Accused; and
(ii) To represent the interests of the Accused in any review process as provided by this part.
(iii)
(B) The Accused may also retain the services of a civilian attorney of the Accused's own choosing and at no expense to the United States Government (“Civilian Defense Counsel”), provided that attorney:
(
(
(
(
(
(4)
(d)
The following procedures shall apply with respect to the Accused:
(a) The Prosecution shall furnish to the Accused, sufficiently in advance of trial to prepare a defense, a copy of the charges in English and, if appropriate, in another language that the Accused understands.
(b) The Accused shall be presumed innocent until proven guilty.
(c) A Commission member shall vote for a finding of Guilty as to an offense if and only if that member is convinced beyond a reasonable doubt, based on the evidence admitted at trial, that the Accused is guilty of the offense.
(d) At least one Detailed Defense Counsel shall be made available to the Accused sufficiently in advance of trial to prepare a defense and until any findings and sentence become final in accordance with § 9.6(h)(2).
(e) The Prosecution shall provide the Defense with access to evidence the Prosecution intends to introduce at trial and with access to evidence known to the Prosecution that tends to exculpate the Accused. Such access shall be consistent with § 9.6(d)(5) and subject to § 9.9.
(f) The Accused shall not be required to testify during trial. A Commission shall draw no adverse inference from an Accused's decision not to testify. This subsection shall not preclude admission of evidence of prior statements or conduct of the Accused.
(g) If the Accused so elects, the Accused may testify at trial on the Accused's own behalf and shall then be subject to cross-examination.
(h) The Accused may obtain witnesses and documents for the Accused's defense, to the extent necessary and reasonably available as determined by the Presiding Officer. Such access shall be consistent with the requirements of § 9.6(d)(5) and subject to § 9.9. The Appointing Authority shall order that such investigative or other resources be made available to the Defense as the Appointing Authority deems necessary for a full and fair trial.
(i) The Accused may have Defense Counsel present evidence at trial in the Accused's defense and cross-examine each witness presented by the Prosecution who appears before the Commission.
(j) The Prosecution shall ensure that the substance of the charges, the proceedings, and any documentary evidence are provided in English and, if appropriate, in another language that the Accused understands. The Appointing Authority may appoint one or more interpreters to assist the Defense, as necessary.
(k) The Accused may be present at every stage of the trial before the Commission, consistent with § 9.6(b)(3), unless the Accused engages in disruptive conduct that justifies exclusion by the Presiding Officer. Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof.
(l) Except by order of the Commission for good cause shown, the Prosecution shall provide the Defense with access before sentencing proceedings to evidence the Prosecution intends to present in such proceedings. Such access shall be consistent with § 9.6(d)(5) of this part and subject to § 9.9.
(m) The Accused may make a statement during sentencing proceedings.
(n) The Accused may have Defense Counsel submit evidence to the Commission during sentencing proceedings.
(o) The Accused shall be afforded a trial open to the public (except proceedings closed by the Presiding Officer), consistent with § 9.6(b).
(p) The Accused shall not again be tried by any Commission for a charge once a Commission's finding on that charge becomes final in accordance with § 9.6(h)(2).
(a)
(2)
(3)
(4)
(5)
(A) Summon witnesses to attend trial and testify;
(B) Administer oaths or affirmations to witnesses and other persons and to question witnesses;
(C) Require the production of documents and other evidentiary material; and
(D) Designate special commissioners to take evidence.
(ii) The Presiding Officer shall exercise these powers on behalf of the Commission at the Presiding Officer's own initiative, or at the request of the Prosecution or the Defense, as necessary to ensure a full and fair trial in accordance with the President's Military Order and this part. The Commission shall issue its process in the name of the Department of Defense over the signature of the Presiding Officer. Such process shall be served as directed by the Presiding Officer in a manner calculated to give reasonable notice to persons required to take action in accordance with that process.
(b)
(1) Provide a full and fair trial.
(2) Proceed impartially and expeditiously, strictly confining the proceedings to a full and fair trial of the charges, excluding irrelevant evidence,
(3) Hold open proceedings except where otherwise decided by the Appointing Authority or the Presiding Officer in accordance with the President's Military Order and this part. Grounds for closure include the protection of information classified or classifiable under Executive Order 12958; information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests. The Presiding Officer may decide to close all or part of a proceeding on the Presiding Officer's own initiative or based upon a presentation, including an
(4) Hold each session at such time and place as may be directed by the Appointing Authority. Members of the Commission may meet in closed conference at any time.
(5) As soon as practicable at the conclusion of a trial, transmit an authenticated copy of the record of trial to the Appointing Authority.
(c)
(2) Each witness appearing before a Commission shall be examined under oath, as provided in paragraph (d)(2)(ii) of this section.
(3) An oath includes an affirmation. Any formulation that appeals to the conscience of the person to whom the oath is administered and that binds that person to speak the truth, or, in the case of one other than a witness, properly to perform certain duties, is sufficient.
(d)
(2)
(ii)
(iii)
(iv)
(3)
(4)
(5)
(A) Information classified or classifiable pursuant to Executive Order 12958;
(B) Information protected by law or rule from unauthorized disclosure;
(C) Information the disclosure of which may endanger the physical safety of participants in Commission proceedings, including prospective witnesses;
(D) Information concerning intelligence and law enforcement sources, methods, or activities; or
(E) Information concerning other national security interests. As soon as practicable, counsel for either side will notify the Presiding Officer of any intent to offer evidence involving Protected Information.
(ii)
(A) The deletion of specified items of Protected Information from documents to be made available to the Accused, Detailed Defense Counsel, or Civilian Defense Counsel;
(B) The substitution of a portion or summary of the information for such Protected Information; or
(C) The substitution of a statement of the relevant facts that the Protected
(iii)
(iv)
(e)
(1) Each charge will be read, or its substance communicated, in the presence of the Accused and the Commission.
(2) The Presiding Officer shall ask each Accused whether the Accused pleads “Guilty” or “Not Guilty.” Should the Accused refuse to enter a plea, the Presiding Officer shall enter a plea of “Not Guilty” on the Accused's behalf. If the plea to an offense is “Guilty,” the Presiding Officer shall enter a finding of Guilty on that offense after conducting sufficient inquiry to form an opinion that the plea is voluntary and informed. Any plea of Guilty that is not determined to be voluntary and informed shall be changed to a plea of Not Guilty. Plea proceedings shall then continue as to the remaining charges. If a plea of “Guilty” is made on all charges, the Commission shall proceed to sentencing proceedings; if not, the Commission shall proceed to trial as to the charges for which a “Not Guilty” plea has been entered.
(3) The Prosecution shall make its opening statement.
(4) The witnesses and other evidence for the Prosecution shall be heard or received.
(5) The Defense may make an opening statement after the Prosecution's opening statement or prior to presenting its case.
(6) The witnesses and other evidence for the Defense shall be heard or received.
(7) Thereafter, the Prosecution and the Defense may introduce evidence in rebuttal and surrebuttal.
(8) The Prosecution shall present argument to the Commission. Defense Counsel shall be permitted to present argument in response, and then the Prosecution may reply in rebuttal.
(9) After the members of the Commission deliberate and vote on findings in closed conference, the Presiding Officer shall announce the Commission's findings in the presence of the Commission, the Prosecution, the Accused, and Defense Counsel. The individual votes of the members of the Commission shall not be disclosed.
(10) In the event a finding of Guilty is entered for an offense, the Prosecution and the Defense may present information to aid the Commission in determining an appropriate sentence. The Accused may testify and shall be subject to cross-examination regarding any such testimony.
(11) The Prosecution and, thereafter, the Defense shall present argument to the Commission regarding sentencing.
(12) After the members of the Commission deliberate and vote on a sentence in closed conference, the Presiding Officer shall announce the Commission's sentence in the presence of the Commission, the Prosecution, the Accused, and Defense Counsel. The individual votes of the members of the Commission shall not be disclosed.
(f)
(g)
(h)
(2)
(3)
(4)
(i) Forward the case to the Secretary of Defense with a recommendation as to disposition, or
(ii) Return the case to the Appointing Authority for further proceedings, provided that a majority of the Review Panel has formed a definite and firm conviction that a material error of law occurred.
(5)
(6)
(a)
(b)
Nothing in this part shall be construed to limit in any way the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons. Nothing in this part shall affect the authority to constitute military commissions for a purpose not governed by the President's Military Order.
Nothing in this part shall be construed to authorize disclosure of state secrets to any person not authorized to receive them.
This part is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. No provision in this part shall be construed to be a requirement of the United States Constitution. Section and subsection captions in this document are for convenience only and shall not be used in construing the requirements of this part. Failure to meet a time period specified in this part, or supplementary regulations or instructions issued under § 9.7(a), shall not create a right to relief for the Accused or any other person. DoD Directive 5025.1
The Secretary of Defense may amend this part from time to time.
The authority of the Secretary of Defense to make requests for assistance under section 5 of the President's Military Order is delegated to the General Counsel of the Department of Defense. The Executive Secretary of the Department of Defense shall provide such assistance to the General Counsel as the General Counsel determines necessary for this purpose.
Department of Defense.
Final rule.
This rule establishes policies for the issuance and interpretation of Military Commission Instructions promulgated pursuant to regulations on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.
April 30, 2003.
Office of Military Commission Spokesperson, 703-693-1115.
Although exempt from administrative procedures for rulemaking, publication of the final rule in the
It has been certified that 32 CFR part 10 is as a military function of the United States and exempt from administrative procedures for rule making.
It has been certified that 32 CFR part 10 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under section 3, para (d)(2).
It has been certified that 32 CFR part 10 does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 10 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 44).
It has been certified that 32 CFR part 10 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the national government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
10 U.S.C. 113Id) and 140(b).
This part establishes policies for the issuance and interpretation of Military Commission Instructions promulgated pursuant to 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” (3 CFR, 2001 comp., p. 918, 66 FR 57833).
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with 10 U.S.C. 113(d) and 140(b).
This part, and, unless stated otherwise, all other Military Commission Instructions apply throughout the Department of Defense, including to the Office of the Secretary of Defense, the Military Departments, the Chairman and Vice Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the Department of Defense Field Activities, and all other organizational entities within the Department of Defense, to any special trial counsel of the Department of Justice who may be made available by the Attorney General of the United States to serve as a prosecutor in trials before military commissions pursuant to 32 CFR 9.4(b)(2), to any civilian attorney who seeks qualification as a member of the pool of qualified Civilian Defense Counsel authorized in 32 CFR 9.4(c)(3)(ii), and to any attorney who has been qualified as a member of that pool.
(a)
(b)
(c)
Military Commission Instructions shall be construed in a manner consistent with 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” Nothing in these Military Commission Instructions applies with respect to the trial of crimes by military commissions convened under other authority. In the event of an inconsistency, the provisions of 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” shall govern as provided in Section 7(B) of Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” Pronouns referring to the male gender shall be construed as applying to both male and female.
Neither this part nor any Military Commission Instruction issued hereafter, is intended to and does not create any right, benefit, privilege, substantive or procedural, enforceable by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. Alleged noncompliance with an Instruction does not, of itself, constitute error, give rise to judicial review, or establish a right to relief for the Accused or any other person.
Neither this part nor any Military Commission Instruction issued hereafter shall be construed to limit, impair, or otherwise affect any authority granted by the Constitution or laws of the United States or Department of Defense regulation or directive.
The General Counsel may issue, supplement, amend, or revoke any Military Commission Instruction at any time.
Department of Defense.
Final rule.
This rule provides guidance with respect to crimes that may be tried by military commissions established pursuant to regulations on, Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” and enumerates the elements of those crimes.
April 30, 2003.
Office of Military Commission Spokesperson, 703-693-1115.
Although exempt from administrative procedures for rulemaking, publication of the final rule in the
It has been certified that 32 CFR part 11 is as a military function of the United States and exempt from administrative procedures for rule making.
It has been certified that 32 CFR part 11 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under section 3, para (d)(2).
It has been certified that 32 CFR part 11 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 11 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 44).
It has been certified that 32 CFR part 11 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the national government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
10 U.S.C. 821.
This part provides guidance with respect to crimes that may be tried by military commissions established pursuant to 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” (3 CFR, 2001 comp., p. 918, 66 FR 57833) and enumerates the elements of those crimes.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” (66 FR 57833) and 10 U.S.C. 113(d), 140(b), and 821. The provisions of 32 CFR part 10 are applicable to this part.
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(1)
(B) The accused intended to kill such person or persons;
(C) Such person or persons were protected under the law of war;
(D) The accused knew or should have known of the factual circumstances that established that protected status; and
(E) The killing took place in the context of and was associated with armed conflict.
(ii)
(2)
(B) The object of the attack was a civilian population as such or
(C) The accused intended the civilian population as such or individual civilians not taking direct or active part in hostilities to be an object of the attack; and
(D) The attack took place in the context of and was associated with armed conflict.
(ii)
(3)
(B) The object of the attack was civilian property, that is, property that was not a military objective;
(C) The accused intended such property to be an object of the attack;
(D) The accused knew or should have known that such property was not a military objective; and
(E) The attack took place in the context of and was associated with armed conflict.
(ii)
(4)
(B) The object of the attack was protected property;
(C) The accused intended such property to be an object of the attack;
(D) The accused knew or should have known of the factual circumstances that established that protected status; and
(E) The attack took place in the context of and was associated with armed conflict.
(ii)
(5)
(B) The accused intended to appropriate or seize such property for private or personal use;
(C) The appropriation or seizure was without the consent of the owner of the property or other person with authority to permit such appropriation or seizure; and
(D) The appropriation or seizure took place in the context of and was associated with armed conflict.
(ii)
(6)
(B) The accused thereby intended to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted;
(C) It was foreseeable that circumstances would be such that a practicable and reasonable ability to accept surrender would exist;
(D) The accused was in a position of effective command or control over the subordinate forces to which the declaration or order was directed; and
(E) The conduct took place in the context of and was associated with armed conflict.
(ii)
(7)
(B) The accused threatened to kill, injure, or continue to detain such person or persons;
(C) The accused intended to compel a State, an international organization, a natural or legal person, or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons; and
(D) The conduct took place in the context of and was associated with armed conflict.
(ii)
(8)
(B) The substance was such that exposure thereto causes death or serious damage to health in the ordinary course of events, through its asphyxiating, poisonous, or bacteriological properties;
(C) The accused employed the substance or weapon with the intent of utilizing such asphyxiating, poisonous, or bacteriological properties as a method of warfare;
(D) The accused knew or should have known of the nature of the substance or weapon; and
(E) The conduct took place in the context of and was associated with armed conflict.
(ii)
(B) The clause “serious damage to health” does not include temporary incapacitation or sensory irritation.
(C) The use of the “substance or weapon” at issue must be proscribed under the law of armed conflict. It may include chemical or biological agents.
(D) The specific intent element for this offense precludes liability for mere knowledge of potential collateral consequences (
(9)
(B) The accused intended to use the civilian or protected nature of the person or persons to shield a military objective from attack or to shield, favor, or impede military operations; and
(C) The conduct took place in the context of and was associated with armed conflict.
(ii) [Reserved]
(10)
(B) The accused intended to shield a military objective from attack or to shield, favor, or impede military operations; and
(C) The conduct took place in the context of and was associated with armed conflict.
(ii) [Reserved]
(11)
(B) The accused intended to inflict such severe physical or mental pain or suffering;
(C) Such person or persons were in the custody or under the control of the accused; and
(D) The conduct took place in the context of and was associated with armed conflict.
(ii)
(B) Severe “mental pain or suffering” is the prolonged mental harm caused by or resulting from:
(
(
(
(
(C) “Prolonged mental harm” is a harm of some sustained duration, though not necessarily permanent in nature, such as a clinically identifiable mental disorder.
(D) Paragraph (a)(11)(i)(C) of this section does not require a particular formal relationship between the accused and the victim. Rather, it precludes prosecution for pain or suffering consequent to a lawful military attack.
(12)
(B) The accused intended to inflict such serious injury;
(C) Such person or persons were in the custody or under the control of the accused; and
(D) The conduct took place in the context of and was associated with armed conflict.
(ii)
(13)
(B) The accused intended to subject such person or persons to such mutilation;
(C) The conduct caused death or seriously damaged or endangered the physical or mental health or appearance of such person or persons.
(D) The conduct was neither justified by the medical treatment of the person or persons concerned nor carried out in the interest of such person or persons;
(E) Such person or persons were in the custody or control of the accused; and
(F) The conduct took place in the context of and was associated with armed conflict.
(ii) [Reserved]
(14)
(B) The accused intended to betray that confidence or belief;
(C) The accused killed, injured, or captured one or more persons;
(D) The accused made use of that confidence or belief in killing, injuring, or capturing such person or persons; and
(E) The conduct took place in the context of and was associated with armed conflict.
(ii) [Reserved]
(15)
(B) The accused made such use in order to feign an intention to negotiate, surrender, or otherwise to suspend hostilities when there was no such intention on the part of the accused; and
(C) The conduct took place in the context of and was associated with armed conflict.
(ii) [Reserved]
(16)
(B) The accused undertook such use for combatant purposes in a manner prohibited by the law of armed conflict;
(C) The accused knew or should have known of the prohibited nature of such use; and
(D) The conduct took place in the context of and was associated with armed conflict.
(ii)
(17)
(B) The accused intended to degrade or otherwise violate the dignity of such body;
(C) The severity of the degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity; and
(D) The conduct took place in the context of and was associated with armed conflict.
(ii)
(18)
(B) The invasion was committed by force, threat of force or coercion, or was committed against a person incapable of giving consent; and
(C) The conduct took place in the context of and was associated with armed conflict.
(ii)
(B) It is understood that a person may be incapable of giving consent if affected by natural, induced, or age-related incapacity.
(C) The concept of “invasion” is linked to the inherent wrongfulness requirement for all offenses. In this case, for example, a legitimate body cavity search could not give rise to this offense.
(D) The concept of “invasion” is gender neutral.
(b)
(1)
(B) The accused intended to so seize, exercise control over, or endanger such vessel or aircraft; and
(C) The conduct took place in the context of and was associated with armed conflict.
(ii)
(2)
(B) The accused:
(
(
(C) The killing, harm or destruction was intended to intimidate or coerce a civilian population, or to influence the policy of a government by intimidation or coercion; and
(D) The killing, harm or destruction took place in the context of and was associated with armed conflict.
(ii)
(B) The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing this offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties.
(3)
(B) The accused:
(
(
(C) The accused did not enjoy combatant immunity; and
(D) The killing took place in the context of and was associated with armed conflict.
(ii)
(B) Unlike the crimes of willful killing or attacking civilians, in which the victim's status is a prerequisite to criminality, for this offense the victim's status is immaterial. Even an attack on a soldier would be a crime if the attacker did not enjoy “belligerent privilege” or “combatant immunity.”
(4)
(B) The property belonged to another person, and the destruction was without that person's consent;
(C) The accused intended to destroy such property;
(D) The accused did not enjoy combatant immunity; and
(E) The destruction took place in the context of and was associated with armed conflict.
(ii) [Reserved]
(5)
(B) The accused intended to aid the enemy; and
(C) The conduct took place in the context of and was associated with armed conflict.
(ii)
(B) The requirement that conduct be wrongful for this crime necessitates that the accused act without proper authority. For example, furnishing enemy combatants detained during hostilities with subsistence or quarters in accordance with applicable orders or policy is not aiding the enemy.
(C) The requirement that conduct be wrongful for this crime may necessitate that, in the case of a lawful belligerent, the accused owe allegiance or some duty to the United States of America or to an ally or coalition partner. For example, citizenship, resident alien status, or a contractual relationship in or with the United States or an ally or coalition partner is sufficient to satisfy this requirement so long as the relationship existed at a time relevant to the offense alleged.
(6)
(B) The accused intended to convey such information to the enemy;
(C) The accused, in collecting or attempting to collect the information, was lurking or acting clandestinely, while acting under false pretenses; and
(D) The conduct took place in the context of and was associated with armed conflict.
(ii)
(B) Related to the requirement that conduct be wrongful or without justification or excuse in this case is the fact that, consistent with the law of war, a lawful combatant who, after rejoining the armed force to which that combatant belongs, is subsequently captured, can not be punished for previous acts of espionage. His successful rejoining of his armed force constitutes a defense.
(7)
(A) The accused testified at a military commission, in proceedings ancillary to a military commission, or provided information in a writing executed under an oath to tell the truth or a declaration acknowledging the applicability of penalties of perjury in connection with such proceedings;
(B) Such testimony or information was material;
(C) Such testimony or information was false; and
(D) The accused knew such testimony or information to be false.
(ii) [Reserved]
(8)
(B) The accused intended to influence, impede, or otherwise obstruct the due administration of justice; and
(C) The accused did such act in the case of a certain person against whom the accused had reason to believe:
(
(
(ii) [Reserved]
(c)
(1)
(B) Such other person or entity committed or attempted to commit the substantive offense; and
(C) The accused intended to or knew that the act would aid or abet such other person or entity in the commission of the substantive offense or an associated criminal purpose or enterprise.
(ii)
(B) In some circumstances, inaction may render one liable as an aider or abettor. If a person has a legal duty to prevent or thwart the commission of a substantive offense, but does not do so, that person may be considered to have aided or abetted the commission of the offense if such noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator.
(C) An accused charged with aiding or abetting should be charged with the related substantive offense as a principal.
(2)
(B) The accused intended that the offense actually be committed.
(ii)
(B) Solicitation may be by means other than speech or writing. Any act or conduct that reasonably may be construed as a serious request, order, inducement, advice, or offer of assistance to commit any offense triable by military commission may constitute solicitation. It is not necessary that the accused act alone in the solicitation, order, inducement, advising, or assistance. The accused may act through other persons in committing this offense.
(C) An accused charged with solicitation of a completed substantive offense should be charged for the substantive offense as a principal. An accused charged with solicitation of an uncompleted offense should be charged for the separate offense of solicitation. Solicitation is not a lesser-included offense of the related substantive offense.
(3)
(B) One or more of the accused's subordinates committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission;
(C) The accused either knew or should have known that the subordinate or subordinates were committing, attempting to commit, conspiring to commit, soliciting, or aiding or abetting such offense or offenses; and
(D) The accused failed to take all necessary and reasonable measures within his power to prevent or repress the commission of the offense or offenses.
(ii)
(A) The phrase “effective authority and control” in paragraph (c)(3)(i)(A) of this section includes the concept of relative authority over the subject matter or activities associated with the perpetrator's conduct. This may be relevant to a civilian superior who should not be held responsible for the behavior of subordinates involved in activities that have no relationship to such superior's sphere of authority. Subject matter authority need not be demonstrated for command responsibility as it applies to a military commander.
(B) A commander or other military or civilian superior, not in command, charged with failing adequately to prevent or repress a substantive offense triable by military commission should be charged for the related substantive offense as a principal.
(4)
(B) One or more of the accused's subordinates had committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission;
(C) The accused knew or should have known that the subordinate or subordinates had committed, attempted to commit, conspired to commit, solicited, or aided or abetted such offense or offenses; and
(D) The accused failed to submit the matter to competent authorities for investigation or prosecution as appropriate.
(ii)
(A) The phrase, “effective authority and control” in paragraph (c)(4)(i)(A) of this section includes the concept of relative authority over the subject matter or activities associated with the perpetrator's conduct. This may be relevant to a civilian superior who cannot be held responsible under this offense for the behavior of subordinates involved in activities that have nothing to do with such superior's sphere of authority.
(B) A commander or superior charged with failing to take appropriate punitive or investigative action subsequent to the perpetration of a substantive offense triable by military commission should not be charged for the substantive offense as a principal. Such commander or superior should be charged for the separate offense of failing to submit the matter for investigation and/or prosecution as detailed in these elements. This offense is not a lesser-included offense of the related substantive offense.
(5)
(B) Such person had committed an offense triable by military commission;
(C) The accused knew that such person had committed such offense or believed such person had committed a similar or closely related offense; and
(D) The accused intended to hinder or prevent the apprehension, trial, or punishment of such person.
(ii)
(6)
(B) The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined in it willfully, that is, with the intent to further the unlawful purpose; and
(C) One of the conspirators or enterprise members, during the existence of the agreement or enterprise, knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise.
(ii)
(B) The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact “triable by military commission.”
(C) The overt act must be done by one or more of the conspirators, but not necessarily the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act.
(D) The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. It is not essential that any substantive offense be committed.
(E) Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the co-conspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it.
(F) A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from or abandons the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal or abandonment. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members.
(G) That the object of the conspiracy was impossible to effect is not a defense to this offense.
(H) Conspiracy to commit an offense is a separate and distinct offense from any offense committed pursuant to or in furtherance of the conspiracy, and both the conspiracy and any related offense may be charged, tried, and punished separately. Conspiracy should be charged separately from the related substantive offense. It is not a lesser-included offense of the substantive offense.
(7)
(B) The accused intended to commit one or more substantive offenses triable by military commission;
(C) The act amounted to more than mere preparation; and
(D) The act apparently tended to effect the commission of the intended offense.
(ii)
(B) Preparation consists of devising or arranging means or measures apparently necessary for the commission of the offense. The act need not be the last act essential to the consummation of the offense. The combination of specific intent to commit an offense, plus the commission of an act apparently tending to further its accomplishment, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.
(C) A person who purposely engages in conduct that would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an attempt.
(D) It is a defense to an attempt offense that the person voluntarily and completely abandoned the intended offense, solely because of the person's own sense that it was wrong, prior to the completion of the substantive offense. The voluntary abandonment defense is not allowed if the abandonment results, in whole or in part, from other reasons, for example, the person feared detection or apprehension, decided to await a better opportunity for success, was unable to complete the crime, or encountered unanticipated difficulties or unexpected resistance.
(E) Attempt is a lesser-included offense of any substantive offense triable by military commission and need not be charged separately. An accused may be charged with attempt without being charged with the substantive offense.
Department of Defense.
Final rule.
This rule establishes the responsibilities of the Office of the Chief Prosecutor and components thereof.
April 30, 2003.
Office of Military Commission Spokesperson, 703-693-1115
Although exempt from administrative procedures for rulemaking, publication of the final rule in the
It has been certified that 32 CFR part 12 is as a military function of the United States and exempt from administrative procedures for rule making.
It has been certified that 32 CFR part 12 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under Section 3, Para (d)(2).
It has been certified that 32 CFR part 12 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 12 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 44).
It has been certified that 32 CFR part 12 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
10 U.S.C. 113(d) and 140(b).
This part establishes the responsibilities of the Office of the Chief Prosecutor and components thereof.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” (3 CFR, 2001 comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to this part.
(a)
(b)
(2) The Chief Prosecutor shall report directly to the Deputy General Counsel (Legal Counsel) of the Department of Defense.
(3) The Chief Prosecutor shall have authority to subpoena any individual to appear as a witness, to testify, or to produce any evidence in a case referred to military commissions or in a criminal investigation associated with a case that may be referred to a military commission.
(4) The Chief Prosecutor shall direct the overall prosecution effort pursuant to 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” ensuring proper supervision and management of all personnel and resources assigned to the Office of the Chief Prosecutor.
(5) The Chief Prosecutor shall ensure that all personnel assigned to the Office of the Chief Prosecutor review, and attest that they understand and will comply with, 32 CFR part 9, and Military Order of November 13, 2001,” Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” and all Supplementary Regulations and Instructions issued in accordance therewith.
(6) The Chief Prosecutor shall inform the Deputy General Counsel (Legal Counsel) of all requirements for personnel, office space, equipment, and supplies to ensure the successful functioning and mission accomplishment of the Office of the Chief Prosecutor.
(7) The Chief Prosecutor shall supervise all Prosecutors and other personnel assigned to the Office of the Chief Prosecutor including any special trial counsel of the Department of Justice who may be made available by the Attorney General of the United States.
(8) The Chief Prosecutor, or his designee, shall fulfill applicable performance evaluation requirements associated with Prosecutors and other personnel properly under the supervision of the Office of the Chief Prosecutor.
(9) The Chief Prosecutor shall detail a Prosecutor and, as appropriate, one or more Assistant Prosecutors to perform the duties of the prosecution as set forth in 32 CFR 9.4(b)(2). The Chief Prosecutor may detail himself to perform such duties.
(10) The Chief Prosecutor shall ensure that all Prosecutors and Assistant Prosecutors faithfully represent the United States in discharging their prosecutorial duties before military commissions conducted pursuant to 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”
(11) The Chief Prosecutor shall ensure that all Prosecutors and Assistant Prosecutors have taken an oath to perform their duties faithfully.
(12) The Chief Prosecutor shall ensure that all personnel properly under the supervision of the Office of the Chief Prosecutor possess the appropriate security clearances.
(c)
(2) Prosecutors shall represent the United States as Prosecutors or Assistant Prosecutors as directed by the Chief Prosecutor and in accordance with 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”
(3) Prosecutors shall fulfill all responsibilities detailed in 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” those set forth in this part, and those assigned by the Chief Prosecutor.
(4) Prosecutors shall ensure that all court reporters, security personnel, and interpreters who are to perform duties in relation to a military commission proceeding have taken an oath to perform their duties faithfully. As directed by the Presiding Officer, Prosecutors also shall administer appropriate oaths to witnesses during military commission proceedings.
(a)
(b)
(c)
(a)
(b)
(c)
Department of Defense.
Final rule.
This rule establishes the responsibilities of the Office of the Chief Defense Counsel and components thereof.
April 30, 2003.
Office of Military Commission Spokesperson, (703) 693-1115.
Although exempt from administrative procedures for rule making, publication of the final rule in the
It has been certified that 32 CFR part 13 is as a military function of the United States and exempt from administrative procedures for rule making.
It has been certified that 32 CFR part 13 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under Section 3, Para (d)(2).
It has been certified that 32 CFR part 13 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 13 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 44).
It has been certified that 32 CFR part 13 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
10 U.S.C. 113(d) and 140(b).
This part establishes the responsibilities of the Office of Chief Defense Counsel and components thereof.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” (3 CFR, 2001 comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to this part.
(a)
(b)
(2) The Chief Defense Counsel shall report directly to the Deputy General Counsel (Personnel and Health Policy) of the Department of Defense.
(3) The Chief Defense Counsel shall supervise all defense activities and the efforts of Detailed Defense Counsel and other office personnel and resources pursuant to 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” ensuring proper supervision and management of all personnel and resources assigned to the Office of the Chief Defense Counsel and facilitating the proper representation of all Accused referred to trial before a military commission appointed pursuant to 32 CFR part 9, and Military Order of
(4) The Chief Defense Counsel shall ensure that all personnel assigned to the Office of the Chief Defense Counsel review, and attest that they understand and will comply with, 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” and all Supplementary Regulations and Instructions issued in accordance therewith. Furthermore, the Chief Defense Counsel shall regulate the conduct of Detailed Defense Counsel as deemed necessary, consistent with 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” and subordinate instructions and regulations, and specifically shall ensure that Detailed Defense Counsel have been directed to conduct their activities consistent with applicable prescriptions and proscriptions specified in Section II of the Affidavit And Agreement By Civilian Defense Counsel at Appendix B to 32 CFR part 14.
(5) The Chief Defense Counsel shall inform the Deputy General Counsel (Personnel and Health Policy) of the Department of Defense of all requirements for personnel, office space, equipment, and supplies to ensure the successful functioning and mission accomplishment of the Office of the Chief Defense Counsel.
(6) The Chief Defense Counsel shall supervise all Defense Counsel and other personnel assigned to the Office of the Chief Defense Counsel.
(7) The Chief Defense Counsel, or his designee, shall fulfill applicable performance evaluation requirements associated with Defense Counsel and other personnel properly under the supervision of the Chief Defense Counsel.
(8) The Chief Defense Counsel shall detail a judge advocate of any United States armed force to perform the duties of the Detailed Defense Counsel as set forth in 32 CFR 9.4(c)(2) and shall detail or employ any other personnel as directed by the Appointing Authority or the Presiding Officer in a particular case. The Chief Defense Counsel may not detail himself to perform the duties of Detailed Defense Counsel, nor does he form an attorney-client relationship with accused persons or incur any concomitant confidentiality obligations.
(i) The Chief Defense Counsel may, when appropriate, detail an additional judge advocate as Assistant Detailed Defense Counsel to assist in performing the duties of the Detailed Defense Counsel.
(ii) The Chief Defense Counsel may structure the Office of the Chief Defense Counsel so as to include subordinate supervising attorneys who may incur confidentiality obligations in the context of fulfilling their supervisory responsibilities with regard to Detailed Defense Counsel.
(9) The Chief Defense Counsel shall take appropriate measures to preclude Defense Counsel conflicts of interest arising from the representation of Accused before military commissions. The Chief Defense Counsel shall be provided sufficient information (potentially including protected information) to fulfill this responsibility.
(10) The Chief Defense Counsel shall take appropriate measures to ensure that each Detailed Defense Counsel is capable of zealous representation, unencumbered by any conflict of interest. In this regard, the Chief Defense Counsel shall monitor the activities of all Defense Counsel (Detailed and Civilian) and take appropriate measures to ensure that Defense Counsel do not enter into agreements with other Accused or Defense Counsel that might cause them or the Accused they represent to incur an obligation of confidentiality with such other Accused or Defense Counsel or to effect some other impediment to representation.
(11) The Chief Defense Counsel shall ensure that an Accused tried before a military commission pursuant to 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” is represented at all relevant times by Detailed Defense Counsel.
(12) The Chief Defense Counsel shall administer all requests for replacement Detailed Defense Counsel requested in accordance with 32 CFR 9.4(c)(3). He shall determine the availability of such counsel in accordance with this part.
(13) The Chief Defense Counsel shall administer the Civilian Defense Counsel pool, screening all requests for pre-qualification and ad hoc qualification, making qualification determinations and recommendations in accordance with 32 CFR part 9, this part, and 32 CFR part 14, and ensuring appropriate notification to an Accused of civilian attorneys available to represent Accused before a military commission.
(14) The Chief Defense Counsel shall ensure that all Detailed Defense Counsel and Civilian Defense Counsel who are to perform duties in relation to a military commission have taken an oath to perform their duties faithfully.
(15) The Chief Defense Counsel shall ensure that all personnel properly under the supervision of the Office of the Chief Defense Counsel possess the appropriate security clearances.
(c)
(2) Detailed Defense Counsel shall represent the Accused before military commissions when detailed in accordance with 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” In this regard Detailed Defense Counsel shall: defend the Accused to whom detailed zealously within the bounds of the law and without regard to personal opinion as to guilt; represent the interests of the Accused in any review process as provided by 32 CFR part 9; and comply with the procedures accorded the Accused pursuant to 32 CFR 9.5 and 9.6. Detailed Defense Counsel shall so serve notwithstanding any intention expressed by the Accused to represent himself.
(3) Detailed Defense Counsel shall have primary responsibility to prevent conflicts of interest related to the handling of the cases to which detailed.
(4) Detailed Defense Counsel shall fulfill all responsibilities detailed in 32 CFR part 9, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” those set forth in this part, and those assigned by the Chief Defense Counsel.
(d)
(2) A judge advocate shall be determined not to be available if assigned duties: as a general or flag officer; as a military judge; as a prosecutor in the Office of Military Commissions; as a judge advocate assigned to the Department of Defense Criminal Investigation Task Force or Joint Task Force Guantanamo; as a principal legal advisor to a command, organization, or agency; as an instructor or student at a service school, academy, college or university; or in any other capacity that the Judge Advocate General of the Military Department
(3) Consistent with 32 CFR 9.6(b), the selection and replacement of new Detailed Defense Counsel shall not unreasonably delay military commission proceedings.
(4) Unless otherwise directed by the Appointing Authority or the General Counsel of the Department of Defense, the Chief Defense Counsel will, after selection of a new Detailed Defense Counsel, relieve the original Detailed Defense Counsel of all duties with respect to that case.
(e)
(2) Consistent with 32 CFR 9.6(b), the retention of Civilian Defense Counsel shall not unreasonably delay military commission proceedings.
(3) Representation by Civilian Defense Counsel will not relieve Detailed Defense Counsel of the duties specified in 32 CFR 9.4(c)(2).
(4) Neither qualification of a Civilian Defense Counsel for membership in the pool of available Civilian Defense Counsel nor the entry of appearance in a specific case guarantees that counsel's presence at closed military commission proceedings or access to information protected under 32 CFR 9.6(d)(5).
(5) The Chief Defense Counsel shall monitor the conduct of all qualified Civilian Defense Counsel for compliance with all rules, regulations, and instructions governing military commissions. The Chief Defense Counsel will report all instances of noncompliance with the rules, regulations, and instructions governing military commissions to the Appointing Authority and to the General Counsel of the Department of Defense with a recommendation as to any appropriate action consistent with 32 CFR part 9 and this part.
(a)
(b)
(a)
(b)
(c)
Department of Defense.
Final rule.
This rule establishes policies and procedures for the creation and management of the pool of qualified Civilian Defense Counsel authorized in regulations on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”
April 30, 2003.
Office of Military Commission Spokesperson, (703) 693-1115.
Although exempt from administrative procedures for rule making, publication of the final rule in the
It has been certified that 32 CFR part 14 is as a military function of the United States and exempt from administrative procedures for rule making.
It has been certified that 32 CFR part 14 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under Section 3, Para (d)(2).
It has been certified that 32 CFR part 14 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 14 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 44).
It has been certified that 32 CFR part 14 does not have federalism implications, as set forth in Executive
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
10 U.S.C. 113(d) and 140(b).
This part establishes policies and procedures for the creation and management of the pool of qualified Civilian Defense Counsel authorized in 32 CFR 9.4 (c)(3)(ii) in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” (3 CFR 2001 Comp., 918, 66 FR 57833).
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” and 10 U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to this part.
(a)
(2) An attorney seeking qualification as a member of the pool of available Civilian Defense Counsel shall submit an application, by letter, to: Office of the General Counsel, Department of Defense, (Attn: Chief Defense Counsel, Office of Military Commissions), 1600 Defense Pentagon, Washington, DC 20301-1600. Applications will be comprised of the letter requesting qualification for membership, together with the following documents that demonstrate satisfaction of the criteria set forth in 32 CFR 9.4(c)(3)(ii):
(i) Civilian Defense Counsel shall be United States citizens (32 CFR 9.4(c)(3)(ii)(A)). Applicants will provide proof of citizenship (
(ii) Civilian Defense Counsel shall be admitted to the practice of law in a State, district, territory or possession of the United States, or before a Federal court (32 CFR 9.4(c)(3)(ii)(B)). Applicants will submit an official certificate showing that the applicant is an active member in good standing with the bar of a qualifying jurisdiction. The certificate must be dated within three months of the date of the Chief Defense Counsel's receipt of the application.
(iii) Civilian Defense Counsel shall not have been the subject of any sanction or disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct (32 CFR 9.4(c)(2)(iii)).
(A) An applicant shall submit a statement detailing all sanctions or disciplinary actions, pending or final, to which he has been subject, whether by a court, bar or other competent governmental authority, for misconduct of any kind. The statement shall identify the jurisdiction or authority that imposed the sanction or disciplinary action, together with any explanation deemed appropriate by the applicant. Additionally, the statement shall identify and explain any formal challenge to the attorney's fitness to practice law, regardless of the outcome of any subsequent proceedings. In the event that no sanction, disciplinary action or challenge has been imposed on or made against an applicant, the statement shall so state. Further, the applicant's statement shall identify each jurisdiction in which he has been admitted or to which he has applied to practice law, regardless of whether the applicant maintains a current active license in that jurisdiction, together with any dates of admission to or rejection by each such jurisdiction and, if no longer active, the date of and basis for inactivation. The information shall be submitted either in the form of a sworn notarized statement or as a declaration under penalty of perjury of the laws of the United States. The sworn statement or declaration must be executed and dated within three months of the date of the Chief Defense Counsel's receipt of the application.
(B) Further, applicants shall submit a properly executed Authorization for Release of Information (Appendix A to this part), authorizing the Chief Defense Counsel or his designee to obtain information relevant to qualification of the applicant as a member of the Civilian Defense Counsel pool from each jurisdiction in which the applicant has been admitted or to which he has applied to practice law.
(iv) Civilian Defense Counsel shall be determined to be eligible for access to information classified at the level SECRET or higher under the authority of and in accordance with the procedures described in Department of Defense Regulation, DoD 5200.2-R, “Personnel Security Program.”
(A) Civilian Defense Counsel applicants who possess a valid current security clearance of SECRET or higher shall provide, in writing, the date of their background investigation, the date such clearance was granted, the level of the clearance, and the adjudicating authority.
(B) Civilian Defense Counsel applicants who do not possess a valid current security clearance of SECRET or higher shall state in writing their willingness to submit to a background investigation in accordance with DoD 5200.2-R and to pay any actual costs associated with the processing of the same. The security clearance application, investigation, and adjudication process will not be initiated until the applicant has submitted an application that otherwise fully complies with this part and the Chief Defense Counsel has determined that the applicant would otherwise be qualified for membership in the Civilian Defense Counsel pool. Favorable adjudication of the applicant's personnel security investigation must be completed before an applicant will be qualified for membership in the pool of Civilian Defense Counsel. The Chief Defense Counsel may, at his discretion, withhold qualification and wait to initiate the security clearance process until such time as the Civilian Defense Counsel's services are likely to be sought.
(v) Civilian Defense Counsel shall have signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the course of proceedings (32 CFR 9.4(c)(2)(v)). This requirement shall be satisfied by the execution of the
(3) Applications mailed in a franked U.S. Government envelope or received through U.S. Government distribution will not be considered. Telefaxed or electronic mail application materials will not be accepted. Failure to provide all of the requisite information and documentation may result in rejection of the application. A false statement in any part of the application may preclude qualification and/or render the applicant liable for disciplinary or criminal sanction, including under 18 U.S.C. 1001.
(b)
(2) The Chief Defense Counsel shall consider all applicants for qualification as members of the Civilian Defense Counsel pool without regard to race, religion, color, sex, age, national origin, or other non-disqualifying physical or mental disability.
(3) The Chief Defense Counsel may reject any Civilian Defense Counsel application that is incomplete or otherwise fails to comply with 32 CFR part 9 and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” or with this part.
(4) Subject to review by the General Counsel of the Department of Defense, the Chief Defense Counsel shall determine the number of qualified attorneys that shall constitute the pool of available Civilian Defense Counsel. Similarly, subject to review by the General Counsel of the Department of Defense, the Chief Defense Counsel shall determine the qualification of applicants for membership in such pool. This shall include determinations as to whether any sanction, disciplinary action, or challenge is related to relevant misconduct that would disqualify the Civilian Defense Counsel applicant.
(5) The Chief Defense Counsel's determination as to each applicant's qualification for membership in the pool of qualified Civilian Defense Counsel shall be deemed effective as of the date of the Chief Defense Counsel's written notification publishing such determination to the applicant. Subsequent to this notification, the retention of qualified Civilian Defense Counsel is effected upon written entry of appearance, communicated to the military commission through the Chief Defense Counsel.
(6) The Chief Defense Counsel may reconsider his determination as to an individual's qualification as a member of the Civilian Defense Counsel pool on the basis of subsequently discovered information indicating material nondisclosure or misrepresentation in the application, or material violation of obligations of the Civilian Defense Counsel, or other good cause, or the matter may be referred to the Appointing Authority or the General Counsel of the Department of Defense, who may revoke or suspend the qualification of any member of the Civilian Defense Counsel pool.
I authorize the Chief Defense Counsel, Office of Military Commissions, Department of Defense, his designee or other duly authorized representative of the Department of Defense who may be charged with assessing or determining my qualification for membership in the pool of Civilian Defense Counsel available to represent Accused before military commissions, to obtain any information from any court, the bar of any State, locality, district, territory or possession of the United States, or from any other governmental authority.
This information may include, but is not limited to, information relating to: Any application for a security clearance; my admission or application for admission to practice law in any jurisdiction, including action by the jurisdiction upon such application, together with my current status with regard to the practice of law in such jurisdiction; any sanction or disciplinary action to which I have been subject for misconduct of any kind; and any formal challenge to my fitness to practice law, regardless of the outcome of subsequent proceedings.
I authorize custodians of such records or information and other sources of information pertaining to me to release such at the request of the officials named above, regardless of any previous agreement to the contrary.
I understand that for certain custodians or sources of information a separate specific release may be required and that I may be contacted for the purposes of executing such at a later date.
I understand that the records or information released by custodians and other sources of information are for official use by the Department of Defense, only for the purposes provided herein, and that they may be redisclosed by the Department of Defense only as authorized by law.
Copies of this authorization that show my signature are as valid as the original signed by me. This authorization is valid for five (5) years from the date signed or upon termination of my affiliation with the Department of Defense, whichever is later.
Pursuant to Section 4(C)(3)(b) of Department of Defense Military Commission Order No. 1, “Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism,” dated March 21, 2002 (“MCO No. 1”), Military Commission Instructions No. 4, “Responsibilities of the Chief Defense Counsel, Detailed Defense Counsel, and Civilian Defense Counsel” (“MCI No. 4”) and No. 5, “Qualification of Civilian Defense Counsel” (“MCI No. 5”), and in accordance with the President's Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 FR 57833 (Nov. 16, 2001) (“President's Military Order”), I [Name of Civilian Attorney], make this Affidavit and Agreement for the purposes of applying for qualification as a member of the pool of Civilian Defense Counsel available to represent Accused before military commissions and serving in that capacity.
I.
A. I have read and understand the President's Military Order, MCO No. 1, MCI No. 4, MCI No. 5, and all other Military Commission Orders and Instructions concerning the rules, regulations and instructions applicable to trial by military commissions. I will read all future Orders and Instructions applicable to trials by military commissions.
B. I am aware that my qualification as a Civilian Defense Counsel does not guarantee my presence at closed military commission proceedings or guarantee my access to any information protected under Section 6(D)(5) or Section 9 of MCO No. 1.
II.
A. I will notify the Chief Defense Counsel and, as applicable, the relevant Presiding Officer immediately if, after the execution of
B. I will be well-prepared and will conduct the defense zealously, representing the Accused throughout the military commission process, from the inception of my representation through the completion of any post trial proceedings as detailed in Section 6(H) of MCO No. 1. I will ensure that these proceedings are my primary duty. I will not seek to delay or to continue the proceedings for reasons relating to matters that arise in the course of my law practice or other professional or personal activities that are not related to military commission proceedings.
C. The Defense Team shall consist entirely of myself, Detailed Defense Counsel, and other personnel provided by the Chief Defense Counsel, the Presiding Officer, or the Appointing Authority. I will make no claim against the U.S. Government for any fees or costs associated with my conduct of the defense or related activities or efforts.
D. Recognizing that my representation does not relieve Detailed Defense Counsel of duties specified in Section 4(C)(2) of MCO No. 1, I will work cooperatively with such counsel to ensure coordination of efforts and to ensure such counsel is capable of conducting the defense independently if necessary.
E. During the pendency of the proceedings, unless I obtain approval in advance from the Presiding Officer to do otherwise, I will comply with the following restrictions on my travel and communications:
1. I will not travel or transmit documents from the site of the proceedings without the approval of the Appointing Authority or the Presiding Officer. The Defense Team and I will otherwise perform all of our work relating to the proceedings, including any electronic or other research, at the site of the proceedings (except that this shall not apply during post-trial proceedings detailed in Section 6(H) of MCO No. 1).
2. I will not discuss or otherwise communicate or share documents or information about the case with anyone except persons who have been designated as members of the Defense Team in accordance with this Affidavit and Agreement and other applicable rules, regulations and instructions.
F. At no time, to include any period subsequent to the conclusion of the proceedings, will I make any public or private statements regarding any closed sessions of the proceedings or any classified information or material, or document or material constituting protected information under MCO No. 1.
G. I understand and agree to comply with all rules, regulations and instructions governing the handling of classified information and material. Furthermore, no document or material constituting protected information under MCO No. 1, regardless of its classification level, may leave the site of the proceedings.
H. I understand that there may be reasonable restrictions on the time and duration of contact I may have with my client, as imposed by the Appointing Authority, the Presiding Officer, detention authorities, or regulation.
I. I understand that my communications with my client, even if traditionally covered by the attorney-client privilege, may be subject to monitoring or review by government officials, using any available means, for security and intelligence purposes. I understand that any such monitoring will only take place in limited circumstances when approved by proper authority, and that any evidence or information derived from such communications will not be used in proceedings against the Accused who made or received the relevant communication. I further understand that communications are not protected if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice.
J. I agree that I shall reveal to the Chief Defense Counsel and any other appropriate authorities, information relating to the representation of my client to the extent that I reasonably believe necessary to prevent the commission of a future criminal act that I believe is likely to result in death or substantial bodily harm, or significant impairment of national security.
K. I understand and agree that nothing in this Affidavit and Agreement creates any substantive, procedural, or other rights for me as counsel or for my client(s).
Sworn to and subscribed before me, by _____, this __ day of ____, 20__.
Department of Defense.
Final rule.
This rule establishes supervisory and performance evaluation relationships for military commission personnel.
April 30, 2003.
Office of Military Commission Spokesperson, 703-693-1115.
Although exempt from administrative procedures for rule making, publication of the final rule in the
It has been certified that 32 CFR part 15 is as a military function of the United States and exempt from administrative procedures for rule making.
It has been certified that 32 CFR part 15 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under Section 3, Para (d)(2).
It has been certified that 32 CFR part 15 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 15 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 44).
It has been certified that 32 CFR part 15 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
10 U.S.C. 113(d) and 140(b).
This part establishes supervisory and performance evaluation relationships for military commission personnel.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” (3 CFR 2001 Comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to this part.
(a)
(1) Appointing Authority: Any Appointing Authority designated by the Secretary of Defense pursuant to 32 CFR part 9 shall report to the Secretary of Defense in accordance with 10 U.S.C. 113(d).
(2) Legal Advisor to Appointing Authority: The Legal Advisor to the Appointing Authority shall report to the Appointing Authority.
(3) Chief Prosecutor: The Chief Prosecutor shall report to the Deputy General Counsel (Legal Counsel) of the Department of Defense and then to the General Counsel of the Department of Defense.
(4) Prosecutors and Assistant Prosecutors: Prosecutors and Assistant Prosecutors shall report to the Chief Prosecutor and then to the Deputy General Counsel (Legal Counsel) of the Department of Defense.
(5) Chief Defense Counsel: The Chief Defense Counsel shall report to the Deputy General Counsel (Personnel and Health Policy) of the Department of Defense and then to the General Counsel of the Department of Defense.
(6) Detailed Defense Counsel: Detailed Defense Counsel shall report to the Chief Defense Counsel and then to the Deputy General Counsel (Personnel and Health Policy) of the Department of Defense.
(7) Review Panel members: Members of the Review Panel shall report to the Secretary of Defense.
(8) Commission members: Commission members shall continue to report to their parent commands. The consideration or evaluation of the performance of duty as a member of a military commission is prohibited in preparing effectiveness, fitness, or evaluation reports of a commission member.
(9) Other personnel: All other military commission personnel, such as court reporters, interpreters, security personnel, bailiffs, and clerks detailed or employed by the Appointing Authority pursuant to 32 CFR 9.4(d), if not assigned to the Office of the Chief Prosecutor or the Office of the Chief Defense Counsel, shall report to the Appointing Authority or his designee.
(b)
(1) Supervise subordinates in the performance of their duties.
(2) Prepare fitness or performance evaluation reports and, as appropriate, process awards and citations for subordinates. To the extent practicable, a reporting official shall comply with the rated subordinate's Military Service regulations regarding the preparation of fitness or performance evaluation reports and in executing related duties.
Department of Defense.
Final rule.
This rule promulgates policy, assigns responsibilities, and prescribes procedures for matters related to sentencing of persons with regard to whom a finding of guilty is entered for an offense referred for trial by a military commission appointed pursuant to regulations on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”
April 30, 2003.
Office of Military Commission Spokesperson, 703-693-1115.
Although exempt from administrative procedures for rule making, publication of the final rule in the
It has been certified that 32 CFR part 16 is as a military function of the United States and exempt from administrative procedures for rule making.
It has been certified that 32 CFR part 16 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under Section 3, Para (d)(2).
It has been certified that 32 CFR part 16 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 16 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 44).
It has been certified that 32 CFR part 16 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
10 U.S.C. 113(d) and 140(b).
This part promulgates policy, assigns responsibilities, and prescribes procedures for matters related to sentencing of persons with regard to whom a finding of guilty is entered for an offense referred for trial by a military commission appointed pursuant to 32 CFR part 9 and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (3 CFR 2001 Comp., p. 918, 66 FR 57833).
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” and 10 U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to this part.
(a)
(b)
(c)
(a)
(b)
(c)
(d)
Department of Defense.
Final rule.
This rule promulgates policy, assigns responsibilities, and prescribes procedures for the conduct of trials by a military commission appointed pursuant to regulations on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism, and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism'.
April 30, 2003.
Office of Military Commission Spokesperson, 703-693-1115.
Although exempt from administrative procedures for rule making, publication of the final rule in the
It has been certified that 32 CFR part 17 is as a military function of the United States and exempt from administrative procedures for rule making.
It has been certified that 32 CFR part 17 pertains to military functions other than procurement and import-export licenses and is exempt from Office of Management and Budget review under Section 3, Para (d)(2).
It has been certified that 32 CFR part 17 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 17 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 44).
It has been certified that 32 CFR part 17 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Military law.
10 U.S.C. 113(d) and 140(b).
This part promulgates policy, assigns responsibilities, and prescribes procedures for the conduct of trials by a military commission appointed pursuant to 32 CFR part 9 and Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” (3 CFR 2001 Comp., p. 918, 66 FR 57833).
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” and 10 U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to this part.
(a)
(2) The Presiding Officer shall determine if it is necessary to conduct or permit questioning of members (including the Presiding Officer) on issues of whether there is good cause for their removal. The Presiding Officer may permit questioning in any manner he deems appropriate. Consistent with 32 CFR part 9, any such questioning shall be narrowly focused on issues pertaining to whether good cause may exist for the removal of any member.
(3) From time to time, it may be appropriate for a Presiding Officer to forward to the Appointing Authority information and, if appropriate, a recommendation relevant to the question of whether a member (including the Presiding Officer) should be removed for good cause. While awaiting the Appointing Authority's decision on such matter, the Presiding Officer may elect either to hold proceedings in abeyance or to continue. The Presiding Officer may issue any appropriate instructions to the member whose continued service is in question. A military commission shall not engage in deliberations on findings or sentence prior to the Appointing Authority's decision in any case in which the Presiding Officer has recommended a member's removal.
(b)
(c)
(a)
(b)
(c)
The Presiding Officer shall ensure the execution of all ancillary functions necessary for the impartial and expeditious conduct of a full and fair trial by military commission in accordance with 32 CFR part 9. Such functions include, for example, scheduling the time and place of convening of a military commission, ensuring that an oath or affirmation is administered to witnesses and military commission personnel as appropriate, conducting appropriate
(a)
(b)
(c)
(d)
Office of Healthy Homes and Lead Hazard Control, HUD.
Notice of funding availability.
(A)
(B)
(A)
(B)
(A)
Appendix B lists additional HUD-associated housing programs that meet the definition of eligible housing under this program.
(1) Because lead-based paint is a national problem, these funds will be awarded to programs which:
(a) Maximize the combination of children protected from lead poisoning and housing units where lead hazards are controlled;
(b) Target lead hazard control efforts at housing in which children are at greatest risk of lead poisoning;
(c) Stimulate cost-effective approaches that can be replicated;
(d) Emphasize lower cost methods of hazard control;
(e) Build local capacity to safely and effectively address lead hazards during lead hazard control, renovation, remodeling, and maintenance activities; and
(f) Affirmatively further fair housing and environmental justice.
(2) The objectives of this program include:
(a) Implementation of a national strategy, as defined in Title X of the Housing and Community Development Act of 1992 (42 U.S.C. 4851
(b) Mobilization of public and private resources, involving cooperation among all levels of government, the private sector, and grassroots faith-based or other community-based organizations to develop cost-effective methods for identifying and controlling lead-based paint hazards;
(c) Development of comprehensive community approaches which result in integration of all community resources (governmental, grassroots faith-based or other community-based, and private businesses) to address lead hazards in housing;
(d) Integration of lead-safe work practices into housing maintenance, repair, weatherization, rehabilitation, and other programs that will continue after the grant period ends;
(e) Establishment of a public registry (listing) of lead-safe housing or inclusion of the lead-safe status of properties in another publicly accessible address-based property information system and affirmatively marketed to families with young children; and
(f) To the greatest extent feasible, promotion of job training, employment, and other economic opportunities for low-income and minority residents and
(B)
(2)
(a) Applicants must report the total number of pre-1940 rental units within the jurisdiction(s) where funds will be used (data from the 2000 U.S. Census are acceptable). Applicants must have at least 3,200 pre-1940 rental housing units in order to apply under this NOFA. Appendix C includes the top 100 areas ranked by the number of pre-1940 rental housing units as determined by the year 2000 U.S. Census. Failure to provide the number of pre-1940 rental units will result in the application not being evaluated.
(b) Provide the actual number of documented cases of lead-poisoned children residing within the applicant's jurisdiction(s) for the most recent complete calendar year and identify the source of the data. Data prior to calendar year 2000 will not be accepted. States and Indian Tribes must report the number in the city, county, or other area where funds will actually be used. Consortia of local governments must report the number in the cities or counties making up the consortium. For the purposes of this application, a “documented case” of childhood lead poisoning is a child under six years of age with a blood lead level test of equal to or greater than 10 micrograms of lead per deciliter of blood, which was performed by a medical health care provider. The actual number of documented cases (not an estimate) must be reported to HUD in order to be eligible for this grant program. Do not send the children's names, addresses, or other identifiers. Failure to provide this number in the application means that the application will not be rated or ranked.
(3)
(a) If your jurisdiction has a current HUD-approved Consolidated Plan, you must submit, as an appendix, a copy of the lead-based paint element included in the approved Consolidated Plan. If the Analysis of Impediments (AI) includes references to lead-based paint as an impediment to fair housing, this should be included in your application as well. If the same applicant agency also submitted an application for the recently published Fiscal Year 2003 Lead Hazard Control Grant Program Notice of Funding Availability, you may refer to this material for proof of documentation if the applicant agencies are the same. You are not required to resubmit this material for this NOFA.
(b) If your jurisdiction does not have a currently approved Consolidated Plan, but it is otherwise eligible for this grant program, you must include your jurisdiction's abbreviated Consolidated Plan, which includes a lead-based paint hazard control strategy developed in accordance with 24 CFR 91.235.
(4)
(C)
(1) Not less than 90 percent of the funds made available shall be used exclusively for abatement and/or interim controls (with clearance testing), inspections, risk assessments, and temporary relocations. These include Direct Project Elements (a)-(e) that you may undertake directly or through sub-recipients:
(a) Performing dust testing, inspections, and risk assessments of eligible housing units constructed prior to 1978 to determine the presence of lead-based paint and/or lead hazards from paint, dust, or soil through the use of acceptable testing procedures. All test results must be provided to the owner of the unit, together with a notice describing the owner's legal duty to disclose the results to tenants and buyers.
(b) Conducting lead hazard control activities that may include any combination of the following:
i. Interim controls of lead-based paint hazards including lead-contaminated soil in housing (that must include specialized cleaning techniques to address lead dust, according to the HUD Guidelines, located at
ii. Abatement. The complete abatement of all lead-based paint hazards in a unit or structure is acceptable if it is cost-effective and if prior HUD approval is obtained. Abatement of lead-contaminated soil should be limited to areas with bare soil in the immediate vicinity of the structure,
All lead hazards identified in a housing unit enrolled in this grant program must be controlled or eliminated by any combination of these strategies.
(c) Carrying out temporary relocation of families and individuals during the period in which hazard control is
(d) Undertaking minimal housing rehabilitation activities that are specifically required to carry out effective hazard control, and without which the hazard control could not be completed and maintained. These grant funds may be used for lead hazard control work done in conjunction with other housing rehabilitation programs. HUD strongly encourages integration of this grant program with housing rehabilitation, maintenance, weatherization, and other energy conservation activities.
(e) Conducting clearance dust-wipe testing and laboratory analysis (the laboratory must be recognized by the National Lead Laboratory Accreditation Program (NLLAP) as being capable of performing lead analyses of samples of paint, dust-wipes, and/or soil).
(2) The following are supporting Project Elements that may be undertaken through matching or other available funds only:
(a) Conducting targeted community awareness, affirmative marketing, education or outreach programs on lead hazard control and lead poisoning prevention designed to increase the ability of the program to deliver lead hazard control services including educating owners of rental properties, tenants, and others on the Residential Lead-Based Paint Hazard Reduction Act, Lead-Safe Housing Regulation, and applicable provisions of the Fair Housing Act, and offering educational materials in languages other than English, when needed, and providing training on lead-safe maintenance and renovation practices and management. Upon request, this also would include making all materials available in alternative formats to persons with disabilities (
(b) Engineering and architectural activities that are required for, and in direct support of, lead hazard control work.
(c) Procuring liability insurance for lead-hazard control activities.
(d) Supporting data collection, analysis, and evaluation of grant program activities. This includes compiling and delivering such information and data as may be required by HUD. This activity is separate from administrative costs.
(e) Purchasing or leasing equipment having a per unit cost under $5,000.
(f) Purchasing or leasing no more than two X-ray fluorescence analyzers for use by this program, if not already available.
(g) Preparing a final report at the conclusion of grant activities.
(3) Support Elements.
(a) Administrative costs. There is a 10 percent maximum for administrative costs as specified in Section 1011(j) of the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X of the Housing and Community Development Act of 1992, Public Law 102-550). Additional information about allowable administrative costs is provided in Appendix B.
(b) Program planning and management costs of sub-grantees and other sub-recipients.
(D)
(1) Purchase of real property.
(2) Purchase or lease of equipment having a per unit cost in excess of $5,000, except for the purchase of X-ray fluorescence analyzers.
(3) Chelation or other medical treatment costs related to children with elevated blood lead levels. Non-federal funds used to cover these costs may be counted as part of the required matching contribution.
(4) Lead hazard control activities in publicly owned housing, or project-based Section 8 housing (This housing stock is not eligible under Section 1011 of the Lead-Based Paint Hazard Reduction Act).
Except as modified in this section, all the requirements, procedures, and principles listed in Section V of the General Section of the SuperNOFA apply to this program.
(A)
(B)
(1)
(2)
(3) By September 30, 2005, a statewide or jurisdiction-wide strategic plan to eliminate childhood lead poisoning as a major public health problem by 2010 (further guidance will be provided to grantees on developing the elimination plan) must be submitted to HUD. Applicants are encouraged to collaborate with grantees of the Centers for Disease Control and Prevention (CDC), which are also now required to develop such local plans. At a minimum, the plan must include the following elements:
(C)
(D)
(E)
(F)
(G)
(1) The community in which the area is situated is participating in the National Flood Insurance Program in accordance with the applicable regulations (44 CFR parts 59-79), or less than a year has passed since FEMA notification regarding these hazards; and
(2) Where the community is participating in the National Flood Insurance Program, flood insurance on the property must be obtained in accordance with section 102(a) of the Flood Disaster Protection Act (42 U.S.C. 4012a(a)). You are responsible for assuring that flood insurance is obtained and maintained for the appropriate amount and term.
(H)
(I)
(J)
(K)
(1) Open flame burning or torching;
(2) Machine sanding or grinding without a high-efficiency particulate air (HEPA) exhaust control;
(3) Uncontained hydro blasting or high-pressure wash;
(4) Abrasive blasting or sandblasting without HEPA exhaust control;
(5) Heat guns operating above 1,100 degrees Fahrenheit;
(6) Chemical paint strippers containing methylene chloride or other volatile hazardous chemicals in a poorly ventilated space; and
(7) Dry scraping or dry sanding, except scraping in conjunction with heat guns or around electrical outlets or when treating no more than two square feet in any one interior room or space, or totaling no more than 20 square feet on exterior surfaces.
(L)
(M)
(N)
(1)
(a) Lead-Based Paint and Lead-Based Paint Hazard Identification. A combined inspection and risk assessment is required. You should ensure that lead paint inspection and risk assessment reports are conducted in accordance with established protocols and sufficient to support hazard control decisions.
(b) Clearance Testing. Clearance testing shall be completed in accordance with Chapter 15 of the HUD Guidelines and the EPA lead hazards standards rule at 40 CFR part 745 for abatement projects and the Lead-Safe Housing Regulation (24 CFR part 35) for lead hazard control activities or other abatement. The clearance standards shall be the more restrictive of those set by the local jurisdiction or by EPA or HUD.
(c) Blood lead testing. Before lead hazard control work begins, each occupant who is under six years of age should be tested for lead poisoning within the six months preceding the housing intervention. Any child with an elevated blood lead level must be referred for appropriate medical follow-up. The standards for such testing are described in the Centers for Disease Control and Prevention (CDC) publications
(O)
(b) If your program includes conducting research involving human subjects in a manner which requires Institutional Review Board (IRB) approval and periodic monitoring, address how you will obtain such approval and your monitoring plan (before you can receive funds from HUD for activities that require IRB approval, you must provide an assurance that your study has been reviewed and approved by an IRB and evidence of your organization's institutional assurance). Describe how you will provide informed consent (
(P)
(Q)
(R)
(S)
(T)
(U)
(V)
(1) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(2) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
(3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises;
(4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises;
(5) Using the services and assistance of the Small Business Administration (SBA), and the Minority Business Development Agency of the Department of Commerce; and
(6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (e)(2)(i) through (v) above.
(W)
(A)
(1)
(a) HUD reserves the right to fund an amount different than the full amount requested in your application to ensure the fair distribution of funds and ensure that the purposes or requirements of this program are met.
(b) HUD will not fund any portion of your application that is not eligible for funding under specific program statutory or regulatory requirements or does not meet the requirements of this NOFA. Only the eligible portions of your application may be funded.
(B)
(1) HUD is encouraging applicants to undertake specific activities that will assist the Department in implementing its policy priorities. HUD's Strategic Goals and Policy Priorities are outlined in Section II of the General Section of the SuperNOFA. Activities that promote economic opportunities for low-income persons support HUD's policy priority for:
This factor addresses your organizational capacity necessary to successfully implement the proposed activities in a timely manner. The rating of the “applicant” or the “applicant's staff” for technical merit or threshold compliance, unless otherwise specified, includes any grassroots faith-based or other community-based organizations, sub-contractors, consultants, sub-recipients, and members of consortia that are firmly committed to your project. In rating this factor, HUD will consider:
(1) The applicant's recent, relevant, and successful demonstrated experience (including governmental, parent groups, and grassroots faith-based or other community-based partners) to undertake eligible program activities. The applicant must describe the knowledge and experience of the current or proposed overall project director and day-to-day program manager in planning and managing large and complex interdisciplinary programs, especially involving housing rehabilitation, public health, or environmental programs. The applicant must demonstrate that it has sufficient personnel or will be able to retain qualified experts or professionals, and be prepared to perform lead hazard evaluation, lead hazard control intervention work, and other proposed activities within 120 days of the effective date of the grant award. HUD reserves the right to terminate the grant if sufficient personnel or qualified experts are not retained within these 120 days. In the narrative response for this factor, you should include information on your program staff, their experience and commitment to the program, salary information, and position titles. Resumes (for up to three key personnel) or position descriptions for those key personnel to be hired, and a clearly identified organizational chart for the lead hazard control grant program effort (and for the overall organization) must be included in an appendix. Indicate the percentage of time that key personnel will devote to your project (
(2) If the applicant received previous HUD Lead-Based Paint Hazard Control Grant funding, this past experience will be evaluated in terms of cumulative progress and achievements under the previous grant(s). Where the applicant has received multiple HUD Lead Hazard Control Grants, performance under the most recent grant award will be primarily evaluated. If you are a current or prior grantee, you must provide the detail necessary to assure HUD that you will implement the proposed work immediately and perform it concurrently with existing lead hazard control grant work. The applicant must provide a description of its progress and performance in implementing the most recent grant award including the total number of housing units enrolled, assessed, in progress, and completed and cleared as of the most recent calendar quarter.
This factor addresses the extent to which there is a need for the proposed program to address a documented problem related to lead-based paint and lead-based paint hazards in your identified target area(s). An applicant will be scored in this rating factor based on their documented need as evidenced by thorough, credible, and appropriate data and information. The evaluation will be based only on the applicant's documentation of the data requested. The data submitted in response to this rating factor will be verified using data available from the Census and in cooperation with the Centers for Disease Control and Prevention.
(1)Provide the actual number of documented cases of lead-poisoned children residing within the applicant's jurisdiction for the most recent complete calendar year and identify the source of the data. Data prior to calendar year 2000 will not be accepted. States must report the number in the city, county, or other area where funds will actually be used. Consortia of local governments must report the number in the cities or counties making up the consortium. For the purposes of this application, a “documented case” of childhood lead poisoning is a child under six years of age with a blood lead level test of equal to or greater than 10 micrograms of lead per deciliter of blood, which was performed by a medical health care provider. The actual number of documented cases (not an estimate) must be reported to HUD in order to be eligible for this grant program. Do not send the children's names or addresses or other identifiers. Failure to provide this number in the application means that the application will not be rated or ranked. Points will be awarded based on the charts below.
This factor addresses the quality and cost-effectiveness of your proposed work plan. Applicants should develop a work plan that includes specific, measurable, and time-phased objectives for each major program activity. The applicant's work plan should reflect benchmark standards for production, expenditures, and other activities that have been developed by the Office of Healthy Homes and Lead Hazard Control. These benchmark standards, as well as policy guidance on developing work plans have been included in the Appendices A and B to this NOFA and are available at the HUD website at:
(1) An applicant is to identify and describe specific methods, measures, and tools that you will use (in addition to HUD reporting requirements) to measure progress, evaluate program effectiveness, and identify program changes necessary to improve performance. Describe how you will obtain, document, and report the information. In evaluating this, HUD will consider how you have described outcome measures and benefits of your program including:
(a) How your program will be held accountable for meeting program goals, objectives, and the actions undertaken in implementing the grant program. Applicants should provide a description of the mechanism to assess progress and track performance in meeting the goals and objectives outlined in the work plan. Applicants should provide assurances that work plans and performance measures developed for the program will assist intended beneficiaries, and that work will be conducted in a timely and cost-effective manner.
(b) Applicants should describe the proposed activities and provide HUD with measurable outcome results to be achieved with the requested funds. Measurable outcome results should be stated in terms relevant to the purpose of the program funds as a direct result of the work performed within the performance period of the grant (
Each proposed activity must be eligible as described in the NOFA and meet statutory requirements for assistance to low- and very low-income persons.
(A)
(1)
(a) How the project will be organized, managed, and staffed. You must also identify the specific steps that will be taken to train and ensure the availability of enough lead-based paint contractors and workers to conduct lead hazard control interventions, and to perform other program activities. In addition, a detailed description of the selection process for sub-grantees, subcontractors or sub-recipients, and how assistance and funding will flow from the grantee to those who will actually perform the work under the grant.
(b) The overall number of eligible privately owned housing units scheduled for lead hazard control intervention work and the strategy for their identification, selection, prioritization, and enrollment in the selected target area(s). Discuss the eligibility criteria for unit selection and how the program will identify units that meet these criteria. Explain how referrals of eligible units will be obtained from childhood lead poisoning prevention programs, other health care or housing agencies, or health providers that serve children. Explain how you would target resources to maximize the return on investment from grant funding. As funding is a constraint for this program, it is imperative to maximize the impact of grant dollars. Include in this discussion your proposed technical approach and how this choice addresses local conditions and needs as well as attempting to maximize the number of children protected from lead hazards. As there are a variety of reduction techniques that grantees can apply to lead hazards, it is important that HUD be able to assess the effectiveness of grantees' choice of technical strategy. Also discuss how referrals are made from the Section 8/Housing Choice Voucher programs and other agencies that provide housing assistance to low-income households with children including CDBG, HOME Investment Partnerships Program-funded housing programs, or other sources. (Include as attachments any referral agreements, commitment letters or other documents from other entities that describe their participation recruiting eligible units in your program.)
(c) The degree to which the work plan focuses on eligible privately owned housing units occupied by low-income families with children under six years of age. Describe your planned approaches to control lead hazards in vacant and/or occupied units before children are poisoned and your plans to ensure that the program will continue to affirmatively market and match these units made lead-safe with low-income families with children under six years of age in the future. Discuss strategies to control lead hazards in units where children have already been identified with an elevated blood lead level (EBL), including your process for referring and tracking children with EBLs, and your capacity to rapidly complete lead hazard control work in their units. Provide estimates of the number of low-income children you will assist through this program.
(d) Discuss the lead hazard control financing strategy, including eligibility requirements, terms, conditions, dollar limits, and amounts available for lead hazard control work. Applicants must also describe how the program will recapture grant funds in the event that a recipient of grant funds fails to comply with any terms and conditions of the financing arrangement (
(e) Describe how your proposed program will satisfy the stated needs in the Consolidated Plan or Indian Housing Plan and eliminate impediments identified in the Analysis of Impediments (AI). Also describe how your proposed program will further and support the policy priorities of the Department: including promoting healthy homes and the quality of housing.
(2)
(a) Describe your testing methods, schedule, and costs for risk assessments, paint inspections, and clearance examinations to be used. If you propose to use a more restrictive standard than the HUD/EPA thresholds (
(b) Describe the lead hazard control methods and strategies you will undertake and the number of units you will treat. In cases where only a few surfaces have lead hazards in a specific unit and complete abatement of all lead paint is cost-effective, the applicant must provide a detailed rationale for selecting complete abatement as a strategy. Provide an estimate of the per unit costs (and a basis for those estimates) and a schedule for initiating and completing lead hazard control work in the selected units. Discuss efforts to incorporate cost-effective lead hazard control methods. Explain your cost estimates, providing detail on how the estimates were developed, with particular references to cost effectiveness.
(c) Schedule. Provide a realistic schedule for completing key activities, by quarter, so that all activities can be completed within the period of performance of the grant. Key production activities include enrollment of units, paint inspections/risk assessments, and completion/clearance of units. When developing the application, the applicant shall take into consideration previous experience and performance in administering similar kinds of lead hazard control or rehabilitation programs.
(d) Time frames. Describe the estimated elapsed time frame for treating a typical unit that will receive lead hazard control, including referral/intake, enrollment (qualification of the unit as eligible), combined paint inspection/risk assessments, preparation of specifications or work write-up, selection of the contractor, lead hazard control intervention work activities, quality control and monitoring of work activities, and clearance. The time frame should include an estimate of the staff and contractor time required to treat a typical unit that will receive lead hazard control. Describe the schedule for emergency referrals (
(e) Workflow and Production Control. Provide guidelines and/or flowcharts showing agency/partner responsibilities for each step in the process (from intake to clearance) and describe/show how coordination and hand-offs will be handled. Discuss how the actual production status of units, from intake to final clearance, will be monitored, and how and when production bottlenecks will be identified, remedied, and monitored.
(f) Describe your contracting process, including development of specifications or adoption of existing specifications for selected lead hazard control methods. Describe the management processes you will use to ensure the cost-effectiveness of your lead hazard control methods. Your application must include a discussion of the contracting process for the conduct of lead hazard control activities in the selected units, and requirements for coordination among lead hazard control, rehabilitation, weatherization, and other contractors.
(g) Describe your plan for occupant protection or the temporary relocation of the occupants of units selected for lead hazard control work. Describe any plan to avoid overnight relocation in small-scale projects consistent with 24 CFR 35.1345(a)(2) and HUD's Interpretive Guidance of 24 CFR part 35, including J24, R18, and R19 (
(h) Describe your strategy for involving neighborhood or grassroots faith-based or other community-based organizations in your proposed activities. Priority activities should include increasing the enrollment of eligible privately owned housing units to receive lead treatments, but may also include inspection (including dust lead testing) and the conduct of lead hazard control activities. HUD will evaluate the proposed level of substantive involvement of such organizations during the review process.
(i) Identify and discuss the specific methods you will use (in addition to HUD reporting requirements) to document activities, progress, program effectiveness, and how changes necessary to improve performance will be implemented. Describe how you will obtain, document, and report on information collected.
(j) If you are a current or prior grantee or you have also applied to the Fiscal Year 2003 Lead Hazard Control Grant Program Notice of Funding Availability, you must describe the actions you will take to ensure that your proposed lead hazard control work will occur concurrently with other ongoing HUD lead hazard control grant work. Your application must provide the detail necessary to assure HUD that you will implement the proposed work immediately and perform it concurrently with other ongoing lead hazard control grant work.
(B)
(1)
(2)
Grantees shall take all reasonable steps to accomplish all lead hazard control activities outlined in an approved work plan within the approved period of performance. HUD will closely monitor grantee performance with particular attention placed on the completion of the number of units in the grant agreement, the expenditure of HUD grant funds as evidenced by drawdowns from the Line of Credit Control System (LOCCS), and other established community education, outreach, and training objectives. HUD reserves the right to terminate the grant prior to the expiration of the period of performance if a grantee fails to meet established work plan benchmark milestones in implementing the approved program of activities.
(1)
(2)
(a)
(b) Checklist and Submission Table of Contents (see Appendix A of this NOFA).
(c)
(d)
(e)
(i) Values placed on donated in-kind services;
(ii) Letters or other evidence of commitment from donors; and
(iii) The amounts and sources of contributed resources.
(f)
(g)
(h)
(i)
(B)
(C)
See Section VIII of the General Section of the SuperNOFA for information about corrections to deficient applications.
(A)
(B)
(C)
The information collection requirements in this NOFA have been approved by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The OMB number is 2539-0015. Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a valid control number.
(D)
Appendix A contains the Checklist and Submission Table of Contents and sample worksheets to assist you in your response to specific information requested in this NOFA. The submission of these worksheets is not mandatory, but has been developed to reduce the applicant's burden on providing this information.
The description of Administrative Costs, Eligibility of HUD-Assisted Housing, Section 1011 of Title X, Elements of a State Certification Program, and Work Plan Guidance.
The top 100 areas ranked by the number of pre-1940 rental housing units as determined by the year 2000 U.S. Census.
The required forms for application submission.
The intent of this HUD grant program is to allow the Grantee to be reimbursed for the reasonable direct and indirect costs, subject to a top limit, for overall management of the grant. In most instances the grantee, whether a state or a local government, principally serves as a conduit to pass funding to sub-grantees, which are to be responsible for the conducting lead-hazard reduction work. Congress set a top limit of 10 percent of the total grant sum for the grantee to perform the function of overall management of the grant program, including passing on funding to sub-grantees. The cost of that function, for the purpose of this grant, is defined as the “administrative cost” of the grant, and is limited to 10 percent of the total grant amount. The balance of 90 percent or more of the total grant sum is reserved for sub-grantees or other direct-performers of lead-hazard identification and reduction work. Lead hazard identification and reduction includes, but is not necessarily limited to outreach, training, enrollment, lead paint inspection/risk assessments, interim controls, hazard abatement, clearance documentation, blood lead testing, and public education.
For purposes of this HUD grant program, the term “administrative costs” should not be confused with the terms “general and administrative cost,” “indirect costs,” “overhead,” and “burden rate.” These are accounting terms usually represented by a government-accepted standard percentage rate. The percentage rate allocates a fair share of an organization's costs that cannot be attributed to a particular project or department (such as the chief executive's salary or the costs of the organization's headquarters building) to all projects and operating departments (such as the Fire Department, the Police Department, the Community Development Department, the Health Department, or this program). Such allocated costs are added to those projects' or departments' direct costs to determine their total costs to the organization.
For the purposes of this HUD grant program, “
Administrative costs are the allowable, reasonable, and necessary direct costs related to the overall management of the HUD grant for lead-hazard reduction activities. Those costs shall be segregated in a separate cost center within the grantee's accounting system, and they are eligible costs for reimbursement as part of the grant, subject to the 10 percent limit. Such administrative costs do not include any of the staff and overhead costs directly arising from specific sub-grantee program activities eligible under Section III (C) of this NOFA, because those costs are eligible for reimbursement under a separate cost center as a direct part of project activities.
The grantee may elect to serve solely as a conduit to sub-grantees, who will in turn perform the direct program activities eligible under this NOFA, or the grantee may elect to perform all or a part of the direct program activities in other parts of its own organization, which shall have their own segregated, cost centers for those direct program activities. In either case, not more than 10 percent of the total HUD grant sum may be devoted to administrative costs, and not less than 90 percent of the total grant sum shall be devoted to the direct delivery of program activities. The grantee shall take care not to mix or attribute administrative costs to the direct project cost centers.
Reasonable costs for the grantee's overall grant management, coordination, monitoring, and evaluation are eligible administrative costs. Subject to the 10 percent limit, such costs include, but are not limited to, necessary expenditures for the following goods, activities and services:
(1) Salaries, wages, and related costs of the grantee's staff, the staff of affiliated public agencies, or other staff engaged in grantee's overall grant management activities. In charging costs to this category the recipient may either include the entire salary, wages, and related costs allocable to the program for each person whose primary responsibilities (more than 65 percent of their time) with regard to the grant program involve direct overall grant management assignments, or the pro rata share of the salary, wages, and related costs of each person whose job includes any overall grant management assignments. The grantee may use only one of these two methods during this program. Overall grant management includes the following types of activities:
(a) Preparing grantee program budgets and schedules, and amendments thereto;
(b) Developing systems for the selection and award of funding to sub-grantees and other sub-recipients;
(c) Developing suitable agreements for use with sub-grantees and other sub-recipients to carry out grant activities;
(d) Developing systems for assuring compliance with program requirements;
(e) Monitoring sub-grantee and sub-recipient activities for progress and compliance with program requirements;
(f) Preparing presentations, reports, and other documents related to the program for submission to HUD;
(g) Evaluating program results against stated objectives;
(h) Providing local officials and citizens with information about the overall grant program; however, a more general education program, helping the public understand the nature of lead hazards, lead hazard reduction, blood-lead screening, and the health consequences of lead-poisoning is a direct project support activity;
(i) Coordinating the resolution of overall grant audit and monitoring findings; and
(j) Managing or supervising persons whose responsibilities with regard to the program include such assignments as those described in paragraphs (a) through (i).
(2) Travel costs incurred for official business in carrying out the overall grant management;
(3) Administrative services performed under third party contracts or agreements, for services directly allocable to grant management such as: legal services, accounting services, and audit services;
(4) Other costs for goods and services required for, and directly related to, the overall management of the grant program; and including such goods and services as telephone, postage, rental of equipment, renter's insurance for the program management space, utilities, office supplies, and rental and maintenance (but not purchase) of office space for the program;
(5) The fair and allocable share of grantee's general costs that are not directly attributable to specific projects or operating departments such as salaries, office expenses, and other related costs for local officials (
(B)
Section 217 of Public Law 104-134 (the Omnibus Consolidated Rescissions and Appropriations Act of 1996, 110 Stat. 1321, approved April 26, 1996) amended Section 1011(a) of the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X) to read as follows:
(a)
(1) For grants made to assist rental housing, at least 50 percent of the units must be occupied by or made available to families with incomes at or below 50 percent of the area median income level, and the remaining units shall be occupied or made available to families with incomes at or below 80 percent of the area median income level, and in all cases the landlord shall give priority in renting units assisted under this section, for not less than 3 years following the completion of lead abatement activities, to families with a child under the age of six years, except that buildings with five or more units may have 20 percent of the units occupied by families with incomes above 80 percent of area median income level;
(2) For grants made to assist housing owned by owner-occupants, all units assisted with grants under this section shall be the principal residence of families with income at or below 80 percent of the area median income level, and not less than 90 percent of the units assisted with grants under this section shall be occupied by a child under the age of six years or shall be units where a child under the age of six years spends a significant amount of time visiting; and
(3) Notwithstanding paragraphs (1) and (2), Round II grantees who receive assistance under this section may use such assistance for priority housing.
To be eligible to receive a Lead-Based Paint Hazard Control grant, an applicant must be a state, tribal, or local (city or county) government. State government and Native American tribal applicants must have an EPA approved state program for certification of lead-based paint contractors, inspectors, and risk assessors in accordance with 40 CFR 745.
In October 1992, Congress passed the Residential Lead-Based Paint Hazard Reduction Act (Title X of the Housing and Community Development Act of 1992). Congress assigned federal responsibility to the Environmental Protection Agency (EPA) for the definition, implementation, and oversight of state and Tribal Certification Programs for workers, contractors, and inspectors engaged in the detection and reduction of lead-based paint hazards. This legislation required EPA to develop regulations on accreditation of training programs, the certification of contractors, and the training of workers engaged in lead-based paint activities. In addition, EPA was directed to issue work practice standards. Under the statute, lead-based paint activities are defined as:
• In the case of target housing: risk assessment, inspection, and abatement; and
• In the case of any public building constructed before 1978, commercial building, bridge, or other structure or superstructure: identification of lead-based paint and materials containing lead-based paint, deleading, removal of lead from bridges, and demolition.
On August 29, 1996, EPA promulgated a final regulation that established requirements for lead-based paint activities in Target Housing and Child Occupied Facilities.
• 40 CFR part 745, subpart L addressed the requirements for the certification of individuals and the accreditation of training programs as well as work practice standards.
• 40 CFR part 745, subpart Q addresses the procedures and requirements for the approval of state programs that would be administered and enforced in lieu of the federal program in that state.
• 40 CFR 745.325 and 745.327 establish the minimum programmatic and enforcement elements that a program must have in order to be authorized. States had until August 30, 1998, to receive authorization from the Agency. After that date, EPA will administer the federal program in that state.
Any state or Tribe applying for a HUD Lead-Based Paint Hazard Control Grant must have implemented legislation and programs that fulfills the requirements of 40 CFR 745.325 and 327 and received EPA authorization for such a program. States and Tribes should be aware that HUD will not award grants for lead-based paint hazard evaluation or reduction to states without an EPA authorized program under section 404 of the Toxic Substances Control Act. An EPA administered training and certification program established in the place of an approved state program does not satisfy the requirement for a state applicant to have a federally-authorized state program. State or Tribal applicants must have received EPA authorization for their program as of the date the Lead-Based Paint Hazard Control Grant program applications are due at HUD. State and Tribal applicants should coordinate with the appropriate EPA Region to ensure their application for an authorized program is approved by the due date for the grant applications. All local government applicants will be required to use performers certified by their state or the EPA to perform lead hazard control work in their state.
Questions regarding the EPA authorization process should be directed to your EPA Regional Lead Coordinator.
Environmental Protection Agency (EPA).
Final rule.
This document makes minor revisions to the terminology of certain commodity terms listed under 40 CFR part 180, subpart C. EPA is taking this action to establish a uniform listing of commodity terms.
This regulation is effective July 1, 2003. Objections and requests for hearings, identified by docket ID number OPP-2002-0043, must be received on or before September 2, 2003.
Hoyt Jamerson, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-9368; fax number: (703) 308-9368; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS 111)
• Animal production (NAICS 112)
• Food manufacturer (NAICS 311)
• Pesticide manufacturer (NAICS 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
EPA's Office of Pesticide Programs (OPP) has developed a commodity vocabulary data base entitled “Food and Feed Commodity Vocabulary.” The data base was developed to consolidate all the major OPP commodity vocabularies into one standardized vocabulary. As a result, all future pesticide tolerances issued under 40 CFR part 180 will use the “preferred commodity term” as listed in the aforementioned data base. This is the third in a series of documents revising the terminology of commodity terms currently in tolerances in 40 CFR part 180. Final rules, revising pesticide tolerance nomenclature, were published in the
In the
This revision process will establish a uniform presentation of existing commodity terms under 40 CFR part 180.
In this rule, EPA is making the following format changes to a the terminology of the commodity terms in 40 CFR part 180 to the extent the terminology is not already in this format:
1. The first letter of the commodity term is capitalized. All other letters, including the first letter of proper names, are changed to lower case.
2. Commodity terms are listed in the singular although there are the following exceptions: “leaves”, “roots”, “tops”, “greens”, “hulls”, “vines”, “fractions”, “shoots”, and “byproducts”.
3. Commodity terms are amended so that generic terms, such as “corn” and “pea”, precede modifying terms, such as “field”, “dry” and “summer”.
4. Abbreviated terms are replaced with the appropriate commodity terms. Examples: “K=CWHR)” is replaced with “kernel plus cob with husks removed” and “POST-H” is replaced with “postharvest”.
5. Parenthesis are replaced with commas. Example: “Cherry (sweet), postharvest” is replaced with “Cherry, sweet, postharvest”.
6. Crop group terms are revised to standardize with the “Food and Feed Vocabulary”. Examples:
i. “Legume vegetables (succulent or dried) group”, “Legume vegetable group (dry and succulent), and “Legume vegetables” are replaced with “Vegetable, legume, group 6”.
ii. “Fruit, stone (cherry, peach, plum, prune) group” is replaced with “Fruit, stone, group 12”.
iii. “Grass forage, fodder and hay” and “Grass, forage, fodder, and hay” are replaced with “Grass, forage, fodder and hay group 17”.
iv. “Herbs and spices” is replaced with “Herb and spice group 19”.
In addition to format changes to the commodity terms, this document also includes many revisions to the commodity terms. These revisions replace certain commodity terms that are no longer used by EPA with the appropriate matching term in the “Food and Feed Commodity Vocabulary”. For example, “Clover, green” is replaced with “Clover, forage”, “Peanut vines” is replaced with “Peanut, hay”, “Swine, meat” is replaced with “Hog, meat”, and “Bushnuts” is replaced with “Nut, macadamia”.
This document also deletes certain terms that are not needed to identify the tolerance commodities. Examples:
i. The term “preharvest” (“pre-H” or “(PRE-H)”) is not needed since tolerances and exemptions established under part 180 apply to residues from only preharvest application, unless otherwise specified, in accordance with 40 CFR 180.1(i).
ii. The term “preslaughter” (“(PRE-S)” or “(PRE-S appli)”) is not needed since tolerances and exemptions established under part 180 apply to residues from preslaughter application to livestock, unless otherwise specified.
iii. The terms “nutmeat” and “nutmeats” when used in association with the tree nut crops or peanut are not needed. For tree nut crops, nutmeat and almond hulls are the only edible portions of the crop consumed. Therefore, OPP's Food and Feed Commodity Vocabulary uses the commodity terms “Almond”, “Pecan”, “Walnut”, etc. for the tree nuts and the commodity term “Peanut” is used in place of “Peanut, nutmeat”. Since “almond hulls” are fed to livestock, tolerances may be established for “Almond, hulls”.
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object ” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0043 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 2, 2003.
1.
Mail your written request to: Office of the Hearing Clerk (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm. 104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (703) 603-0061.
2.
EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at
If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
3.
A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the
This final rule makes technical amendments to the Code of Federal Regulations which have no substantive impact on the underlying regulations, and it does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that a technical amendment is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pest, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346(a) and 371.
(a) * * *
(3) * * *
a. (Pre-H)
b. pre-H
c. (PRE-H)
d. , nutmeat
e. , nutmeats
f. (nutmeats)
g. (nuts)
h. (PRE-S appli)
i. (pre-s)
Environmental Protection Agency (EPA).
Final rule.
This document makes minor revisions to the terminology of certain commodity terms listed under 40 CFR part 180, subpart C. EPA is taking this action to establish a uniform listing of commodity terms.
This rule becomes effective on July 1, 2003. Objections and requests for hearings, identified by docket ID number OPP-2002-0043, must be received on or before September 2, 2003.
Written objections and hearing requests may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit III. of the
Hoyt Jamerson, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-9368; and e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS 111)
• Animal production (NAICS 112)
• Food manufacturing (NAICS 311)
• Pesticide manufacturing (NAICS 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
EPA's Office of Pesticide Programs (OPP) has developed a commodity vocabulary data base entitled
In the
This revision process will establish a uniform presentation of existing commodity terms under 40 CFR part 180.
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0043 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 2, 2003.
1.
Mail your written request to: Office of the Hearing Clerk (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm.104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (703) 603-0061.
2.
EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at
If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
3.
A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule makes technical amendments to the Code of Federal Regulations which have no substantive impact on the underlying regulations, and it does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that a technical amendment is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Administrative practice and procedure, Agricultural commodities, Environmental protection, Pesticides and pest, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I, part 180, subpart C is amended as follows:
21 U.S.C. 321(q), 346(a) and 374.
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(i) Minimum flashpoint of 300 °F.
(ii) Gravity of 27 to 34 by the American Petroleum Institute standard method.
(iii) Pour point of 30 °F maximum.
(iv) Color 2 maximum by standards of the American Society for Testing Materials.
(v) Boiling point between 480 °F and 960 °F.
(vi) Viscosity at 100 °F of 100 to 200 seconds Saybolt.
(vii) Unsulfonated residue of 90 percent minimum.
(viii) No sulfur compounds according to the United States Pharmacopeia test under Liquid Petrolatum.
(2) Tolerances for residues of mineral oil as specified in paragraph (a)(1) of this section are established in or on the following food commodities:
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(2) A tolerance is established for combined residues of the plant regulator
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(2) Tolerances are established for residues of the fungicide streptomycin from treatment of seedling plants before transplanting in or on the following food commodities:
(3) Tolerances are established for residues of the fungicide streptomycin from treatment of seed pieces in or on the following food commodity:
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Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
In accordance with HUD regulations, this Notice lowers the mortgage insurance premiums (MIP) for certain Federal Housing Administration (FHA) mortgage insurance programs whose commitments will be issued in Fiscal Year (FY) 2004.
Interested persons are invited to submit written comments regarding this rule to the Regulations Division, Room 10276, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-0500. Comments should refer to the above docket number and title. A copy of each comment submitted will be available for public inspection and copying between 8 a.m. and 5 p.m., weekdays, at the above address. Facsimile (FAX) comments will not be accepted.
Michael McCullough, Director, Office of Multifamily Development, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-8000, (202) 708-1142 (this is not a toll-free number). Hearing- or speech-impaired individuals may access these numbers through TTY by calling the Federal Information Relay Service at (800) 877-8339 (this is a toll-free number).
On March 17, 2003 (68 FR 12792), HUD published a final rule on “Mortgage Insurance Premiums in Multifamily Housing Programs,” which adopted, without change, the interim rule published on July 2, 2001 (66 FR 35072). The final and interim rule revised the regulatory system for establishing the MIP. Instead of setting the MIP at a specific rate, the Secretary is permitted to change an MIP within the full range of HUD's statutory authority of one fourth of one percent to one percent through a notice, as provided in section 203(c)(1) of the National Housing Act (the Act) (12 U.S.C. 1709(c)(1)). The final rule states that HUD will provide a 30-day period for public comment on future notices changing mortgage insurance premiums in multifamily insured housing programs. These regulations are codified at 24 CFR 207.252, 207.252a, and 207.254.
This Notice announces the lowering of mortgage insurance premiums in FY 2004 to 50 basis points for multifamily programs authorized under sections 207, 220, and 221(d)(4) of the Act without low-income housing tax credits, section 231 of the Act, and insured programs with HOPE VI with or without low-income housing tax credits. The effective date of these changes is October 1, 2003. Multifamily programs under the following sections of the Act will remain at 80 basis points and will continue to require a credit subsidy obligation: Section 221(d)(3) for nonprofit and cooperatives for new construction or rehabilitation, section 223(d) for operating loss loans for both apartments and health care facilities, and section 241(a) for supplemental loans for additions or improvements to existing apartments. The MIP for sections 223(a)(7), 207 pursuant to 223(f), 232, 232 pursuant to 223(f), 242, and 241(a) of the Act for health care facilities, Title XI, and low-income housing tax credit projects remain unchanged at 50 basis points.
The mortgage insurance premiums to be in effect for FHA firm commitments issued, amended, or reissued in FY 2004 are shown in the table below:
The MIP regulations are found in 24 CFR part 207. This Notice is published in accordance with the procedures stated in 24 CFR 207.252, 207.252(a), and 207.254.
If a firm commitment has been issued at a higher MIP, and FHA has not initially endorsed the note, the lender may request the field office to reprocess the commitment at the lower MIP and reissue the commitment on or after October 1, 2003. If the initial endorsement has occurred the MIP cannot be changed.
FHA may extend outstanding firm commitments when the Hub/Program Center determines that the underwriting conclusions (rents, expenses, construction costs, mortgage amount and case required to close) are still valid.
FHA will consider requests from mortgagees to reprocess outstanding firm commitments at the lower mortgage insurance premium once the new premiums become effective in FY 2004:
1. Outstanding commitments with initial 60-day expiration dates on or after the effective date of this MIP notice.
• FHA Multifamily Hub/Program Center staff will simply reprocess these cases to reflect the impact of the lower MIP and reissue commitments with a new date.
2. Outstanding commitments with initial expiration dates prior to the effective date of this MIP notice which have pending extension requests or have had extensions granted by FHA beyond the initial 60-day period.
• These cases will require more extensive reprocessing by FHA staff. Reprocessing will include an updated FHA field staff analysis and review of
FHA will consider requests from mortgagees, which may be either updated Traditional Application Processing (TAP) firm commitment applications or updated Multifamily Accelerated Processing (MAP) applications with updated exhibits, to reopen expired 57 or 61 basis points commitments on or after the effective date of the MIP notice, provided that the reopening requests are received within 90 days of the expiration of the commitments and include the $.50 per thousand of requested mortgage reopening fee. Reopening requests will be reprocessed by FHA field staff under the instructions in paragraph C.2 above.
After expiration of the 90-day reopening period, mortgagees are required to submit new applications with the $3 per thousand application fee (MAP applications must start at the pre-application stage).
Mortgagee Letters will be issued from time to time to advise mortgagees of any requirements for credit subsidy and the availability of credit subsidy. In FY 2004, the same three programs will require credit subsidy as in FY 2003: Section 221(d)(3) for nonprofit and cooperatives for new construction or substantial rehabilitation, section 223(d) for operating loss loans for both apartments and health care facilities, and section 241(a) for supplemental loans for additions or improvements to existing apartments only. FHA will not issue amended commitments for increased mortgage amounts nor obligate additional credit subsidy for projects requiring credit subsidy in FY 2004.