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Agricultural Marketing Service, USDA.
Interim final rule with request for comments.
This rule limits the volume of small red seedless grapefruit entering the fresh market under the marketing order covering oranges, grapefruit, tangerines, and tangelos grown in Florida (order). The Citrus Administrative Committee (Committee) administers the order locally and recommended this action. This rule limits the volume of sizes 48 and 56 red seedless grapefruit shipped during the first 22 weeks of the 2003-04 season by establishing weekly percentages for each of the 22 weeks, beginning September 15, 2003. This action supplies enough small red seedless grapefruit, without saturating all markets with these small sizes. This rule should help stabilize the market and improve grower returns.
Effective September 10, 2003; comments received by October 9, 2003 will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail:
William G. Pimental, Southeast Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 799 Overlook Drive, Suite A, Winter Haven, Florida 33884-1671; telephone: (863) 324-3375, Fax: (863) 325-8793; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; telephone (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement No. 84 and Marketing Order No. 905, both as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule limits the volume of small red seedless grapefruit entering the fresh market. This rule restricts the volume of sizes 48 and 56 fresh red seedless grapefruit shipped during the first 22 weeks of the 2003-04 season by establishing a weekly percentage for each of the 22 weeks, beginning September 15, 2003. This rule supplies enough small red seedless grapefruit, without saturating all markets with these small sizes. This action should help stabilize the market and improve grower returns.
Section 905.52 of the order provides authority to limit shipments of any grade or size, or both, of any variety of Florida citrus. Such limitations may restrict the shipment of a portion of a specified grade or size of a variety. Under such a limitation, the quantity of such grade or size a handler may ship during a particular week is established as a percentage of the total shipments of such variety shipped by that handler during a prior period, established by the Committee and approved by USDA.
Section 905.153 of the regulations provides procedures for limiting the volume of small red seedless grapefruit entering the fresh market. The procedures specify that the Committee may recommend that only a certain percentage of sizes 48 and 56 red seedless grapefruit be made available for shipment into fresh market channels for any week or weeks during the regulatory period. The regulation period is 22 weeks long and begins the third Monday in September. Under such a limitation, the quantity of sizes 48 and 56 red seedless grapefruit that may be shipped by a handler during a regulated week is calculated using the recommended percentage. By taking the recommended
This rule limits the volume of sizes 48 (3
The Committee believes the over shipment of smaller-sized red seedless grapefruit has a detrimental effect on the market. While there is a market for small-sized red seedless grapefruit, the availability of large quantities oversupplies the fresh market with these sizes and negatively impacts the market for all sizes. These smaller sizes, 48 and 56, normally return the lowest prices when compared to the other larger sizes. However, when there is too much volume of the smaller sizes available, the overabundance of small-sized fruit pulls the prices down for all sizes.
For the three seasons prior to the use of percentage size regulation, 1994-95, 1995-96, and 1996-97, returns for red seedless grapefruit had been declining, often not returning the cost of production. On-tree prices for red seedless grapefruit had fallen steadily from $6.87 per box (1
An economic study done by the University of Florida—Institute of Food and Agricultural Sciences in May 1997, found that on-tree prices had fallen from a high near $7.00 per carton in 1991-92 to around $1.50 per carton for the 1996-97 season. The study projected that if the industry elected to make no changes, the on-tree price would remain around $1.50 per carton. The study also indicated that increasing minimum size restrictions could help raise returns.
The Committee believes the over shipment of smaller-sized red seedless grapefruit contributed to these poor returns for growers and to lower prices. Based on available statistical information, Committee members concluded that once shipments of sizes 48 and 56 reached levels above 250,000 cartons per week, prices declined on those and most other sizes of red seedless grapefruit. The Committee believed if shipments of small sizes were maintained at around or below 250,000 cartons a week, prices would stabilize and demand for larger, more profitable sizes would increase. Consequently, in 1996, the Committee recommended changing their rules and regulations to establish the procedures in § 905.153 to limit the volume of small red seedless grapefruit entering the market. The Committee has successfully used the provisions of § 905.153 to address the problems associated with the over shipment of small red seedless grapefruit, recommending percentage of size regulation during the first 11 weeks of the 1997-98, 1998-99, 1999-2000, and 2000-01 seasons, and for the first 22 weeks of the 2001-02 and 2002-03 seasons. Under percentage of size regulation, prices increased and movement stabilized when compared to seasons without regulation.
The Committee believes for the 2003-04 season small sized red seedless grapefruit would again negatively impact the market for all grapefruit if not regulated. By regulating the volume of small sizes entering the fresh market for the first 22 weeks of the season, shipments of sizes 48 and 56 can be maintained near the 250,000-carton level. To address the volume of small-sized red seedless grapefruit available and to prevent the over shipment of small sizes, the Committee voted to utilize the provisions of § 905.153 and establish percentage of size regulation for each of the 22 weeks of the regulatory period for the 2003-04 season.
In making its recommendation, the Committee considered the success of previous percentage of size regulations and their experience from past seasons. At the meeting, the Committee reviewed the results of a study commissioned to determine the merit of percentage of size regulation. The study completed by Robert E. Barber, Jr., Director of Economics, Florida Citrus Mutual, entitled “An Econometric Spatial Equilibrium Analysis of the 48/56 Red Grapefruit Rule,” dated July 1, 2003, evaluated the effectiveness of past percentage of size regulation.
One of the Committee's goals in establishing percentage of size regulation was to stabilize prices and increase returns. The Committee believes percentage of size regulation has been effective in this area, and the study shows this to be true. The study estimates that percentage of size regulation has increased total f.o.b. revenues for red grapefruit by a total of 12 percent or $18.9 million over the six-year period from 1997-98 to 2002-03, averaging $3.15 million per season. Each of the six seasons had an increase in f.o.b. revenues ranging from a low of $2.52 million during the 1999-2000 season to a high of $3.73 million for the 2002-03 season. The f.o.b. prices per carton are also estimated to have increased by an average of 17 percent or $1.00 per carton during this six-year period.
In the three seasons prior to the first percentage of size regulation in 1997-98, prices of red seedless grapefruit fell from a weighted average f.o.b. price of $7.80 per carton in October to a weighted average f.o.b. price of $5.50 per carton in December. In the six seasons utilizing percentage of size regulation, red seedless grapefruit maintained higher prices throughout the season with a weighted average f.o.b. price of $8.10 per carton in October, $7.06 per carton in December, and remained at around $6.90 in April.
Average prices for the season have also been higher during seasons with percentage of size regulation. The average season price for red seedless grapefruit was $7.00 for the last six years compared to $5.83 for the three years prior to using percentage of size regulation. The Barber study shows that prices for the past six seasons would have been from around $0.72 to $1.00 lower per carton without regulation.
On-tree prices for fresh red seedless grapefruit have also been higher during seasons with percentage of size regulation than for the three seasons prior to regulation. The average on-tree price for fresh red seedless grapefruit was $4.42 for the seasons 1997-98 through 2001-02 with percentage of size regulation compared to $3.08 for the three years prior to regulation.
The University of Florida, Citrus Research and Education Center published an estimated cost of production for grapefruit for the 2001-2002 season. The cost to produce grapefruit for the fresh market was estimated at $1,008.77 per acre for the Indian River area, the major grapefruit production area in Florida. Indian River grapefruit production has averaged around 417 boxes per acre. Based on the cost of production, and the average boxes per acre, growers need to earn a total on-tree value (fruit going both to the fresh market and to processing) of approximately $2.42 per box in order to break even. For the three seasons prior to percentage of size regulation, the total on-tree value averaged $1.78 per box. Comparatively, for the seasons with
Small growers have struggled the last eight seasons to receive returns near the cost of production. For many, the higher on-tree returns produced under percentage of size regulation have meant the difference between profit and loss.
Another of the Committee's goals in establishing percentage of size regulation was to help maintain the price differential between the prices for larger sizes and those for smaller sizes. At the start of the season, larger-sized fruit command a premium price. The f.o.b. price can be $4 to $10 more a carton than for the smaller sizes. The last three seasons, the f.o.b. price for a size 27 has averaged around $13.50 per carton in October. This compares to an average f.o.b. price of around $5.80 per carton for a size 56 during the same period. In the three years before the issuance of a percentage size regulation, the f.o.b. price for large sizes dropped to within $1 or $2 of the f.o.b. price for small sizes by the middle of the season due to the oversupply of the smaller sizes.
Percentage of size regulation has helped sustain the price differential, maintaining higher prices for the larger-sized fruit. During the three years before regulation, the average differential between the carton price for a size 27 and a size 56 was $3.47 at the end of October and dropped to $1.68 by mid-December. In the six years with percentage of size regulation, the average differential between the carton price for a size 27 and a size 56 was $5.43 at the end of October, $3.78 in mid-December, and remained at around $3.10 the first week in May.
The Barber study also states that f.o.b. revenues for larger sized red grapefruit benefited substantially from percentage of size regulation. Of the $18.9 million increase in total fresh f.o.b. revenues for red grapefruit the last six seasons, nearly $16.7 million can be attributed to gains made by fruit larger than sizes 48 and 56.
According to the Economic Analysis and Program Planning Branch, USDA, the margins between the prices for the various sizes of red grapefruit have remained fairly constant throughout the seasons covered under percentage of size regulation. However, if the domestic market becomes glutted with too many small-sized grapefruit (48 and 56), these margins would be negatively impacted and total grower returns would be reduced.
The goal of this percentage of size rule is to reduce the volume of the least valuable fruit in the market and strengthen grower prices and revenues. Without this rule, the fresh grapefruit market will become glutted with small-sized fruit, which will have a negative impact on prices for larger-sized fruit and grower returns. Absent this rule, the price margins between sizes (23, 27, 32, 36, 40, 48, and 56) will diminish and ultimately result in lower grower returns. This rule is intended to fully supply all markets for small sizes with fresh red seedless grapefruit size 48 and 56, while avoiding oversupplying these markets to the detriment of grower revenues.
The Committee believes percentage of size regulation has also helped stabilize the volume of small sizes entering the fresh market. During deliberations in past seasons, Committee members concluded once shipments of sizes 48 and 56 reached levels above 250,000 cartons per week, prices declined on those and most other sizes of red seedless grapefruit. The last six seasons during the weeks regulated by a percentage of size regulation, weekly shipment of sizes 48 and 56 red seedless grapefruit remained near or below 250,000 cartons for nearly 90 percent of the regulated weeks. Also, based on the Barber study, while percentage of size regulation has been successful in controlling the volume of small sizes entering the fresh market, it has had only a limited effect on total shipments.
In addition, an economic study by Florida Citrus Mutual (Lakeland, Florida) dated April 1998, also found that the weekly percentage regulation was effective. The study stated that part of the strength in early season pricing appeared to be due to the use of the weekly percentage rule to limit the volume of sizes 48 and 56. It said prices were generally higher across the size spectrum with sizes 48 and 56 having the largest gains, and larger-sized grapefruit also registering modest improvements. The rule shifted the size distribution toward the higher-priced, larger-sized grapefruit, which helped raise average f.o.b. prices. It further stated that sizes 48 and 56 accounted for only 17 percent of domestic shipments during the same period in the 1997-98 season, as small sizes were used to supply export customers with preferences for small-sized grapefruit.
In addition to the success of past regulations, there are other circumstances warranting the consideration of establishing percentage of size regulation. For the three seasons, 1999-2000, 2000-01, and 2001-02, the percentage of the remaining crop represented by small sizes in February averaged around 53 percent. This compares to an average of 31 percent for the same month for seasons 1995-96 through 1997-98. These three seasons, 1999-2000 through 2001-02, averaged a greater percentage of smaller sizes across each month, October through February, than over the three seasons 1995-96 through 1997-98. For the seven seasons prior to the 2002-03 season there has been a movement toward an increased volume of small sizes as a percentage of the overall crop. For the 2002-03 season, grapefruit sized larger than in the previous seasons and small sizes were not as dominant a factor. However, while the crop sized well throughout last season, it is unclear how the 2003-04 crop will size. It is possible that the 2003-04 crop may produce the volume of small sizes represented in the majority of past seasons, making an even greater supply of small-sized fruit available for market.
Problems with the European and Asian markets could also impact the volume of small sizes available. These markets have shown a strong demand for the smaller-sized red seedless grapefruit. However, the reduction in shipments to these areas experienced during the last few years is expected to continue during the upcoming season due to their weak economies. This could result in a greater amount of small sizes for remaining markets to absorb.
The market for processed grapefruit is also a consideration. Approximately 48 percent of red seedless grapefruit is used for processing, with the majority being squeezed for juice. However, this outlet offers limited returns and is currently not profitable. Of the last six years, only 1999-2000 produced on-tree returns for processed red seedless grapefruit exceeding $1 per box. When on-tree returns for processed grapefruit drop below a dollar, there is pressure to shift a larger volume of the overall crop to the fresh market to benefit from the higher prices normally paid for fresh fruit. From 1977 through 2000, the differential between fresh prices and processed prices has averaged $3.55 per box. Consequently, growers prefer to ship grapefruit to the fresh market.
Statistics from the Florida Department of Citrus show there is currently a 40-week inventory of red seedless grapefruit juice from last season. By the start of the season, it is projected that over 35 weeks worth of juice will remain in inventory. Due to current inventories, on-tree prices for processed red seedless grapefruit for the 2003-04 season will most likely mirror prices from past seasons and remain below a dollar. A fair percentage of red seedless grapefruit shipped for processing are smaller sizes. With limited returns for processed grapefruit, an additional
Further, red seedless grapefruit production continues to exceed demand. This has contributed to the low returns and led to economic abandonment. According to information from the National Agricultural Statistics Service, the seasons of 1995-96, 1996-97, 1997-98, 2000-01, and 2001-02 had an average economic abandonment of two million boxes or more of red seedless grapefruit. Data for the 2002-03 season will not be published until September. However, it is likely some economic abandonment did occur last season.
Economic abandonment and prices falling below the cost of production support the use of percentage of size regulation to control the volume of small sizes. The percentage of size regulation has a positive impact on price and is intended to make the most economically viable fruit available to the fresh market without oversupplying small-sized fruit. The above considerations further support the need to control the volume of sizes 48 and 56 during the season to prevent small sizes from overwhelming all markets.
The Committee believes the volume of small red seedless grapefruit available will have a detrimental effect on the market if it is not controlled. Members believe establishing weekly percentages during the last six seasons has been effective and that problems successfully addressed by percentage of size regulation will return without regulation. Consequently, the Committee believes weekly percentage of size regulation should be established for each of the 22 weeks of the regulatory period for the 2003-04 season. The Committee recommended establishing weekly percentages at 45 percent for the first two weeks, 35 percent for weeks 3 through 19, and 40 percent for weeks 20, 21, and 22.
The Committee considered the percentages set last year as a basis for discussing percentages for the 2003-04 season. They believe the percentages set last year worked well, and decided to make their initial recommendation for each of the 22 weeks at the same levels. Committee members believed setting last season's percentages higher than the most restrictive level allowed of 25 percent had worked well, providing some restriction while affording volume for those markets that prefer small sizes.
Committee members believe if shipments of small sizes are maintained at around or below 250,000 cartons a week, prices stabilize and demand for larger, more profitable sizes increases. The Committee considered the 250,000-carton level when recommending the weekly percentages. The first two weeks are set at 45 percent because it is likely there will only be a limited volume shipped. In the last five seasons, total shipments of red seedless grapefruit have only exceeded 250,000 cartons once in the first two weeks of the season.
Setting weekly percentages at 35 percent for the majority of weeks provides a total allotment of 252,610 cartons (35 percent of the total industry base of 721,743 cartons) per week. While this is slightly more than 250,000 cartons, it is unlikely all available allotment will be used each week, and this allows individual handlers some additional flexibility. The increase to 40 percent for the last three weeks offers a little more allotment providing some transition to the period without regulation and helps to prevent the dumping of small sizes following the end of regulation. The Committee believes these percentages provide some flexibility while holding weekly shipments at sizes 48 and 56 close to the 250,000-carton mark.
More information helpful in determining the appropriate weekly percentages will be available after August. At the time of the July meeting, grapefruit had just begun to size, giving little indication as to the distribution of sizes. Only the most preliminary of crop estimates was available, with the official estimate not to be issued until October. Further, the first reports on how the crop is sizing will not be available until after September. Consequently, the Committee believes it is best to set regulation at these levels, and then relax the percentages later in the season if conditions warrant.
The Committee recognized they could meet again during the regulation period, as needed, and use the most current information to consider adjustments in the weekly percentage rates. This will help the Committee make the most informed decisions as to whether the established percentages are appropriate. Any changes to the weekly percentages set by this rule will require additional rulemaking and the approval of USDA.
Therefore, this rule establishes weekly percentages at 45 percent for the first two weeks, 35 percent for weeks 3 through 19, and at 40 percent for weeks 20 through 22. This rule is intended to fully supply all markets for small sizes with fresh red seedless grapefruit sizes 48 and 56, while avoiding oversupplying these markets to the detriment of grower revenues. The Committee plans to meet as needed during the 22-week period to ensure weekly percentages are at the appropriate levels.
Under § 905.153, the quantity of sizes 48 and 56 red seedless grapefruit a handler may ship during a regulated week is calculated using the set weekly percentage. Handlers can fill their allotment with size 56, size 48, or a combination of the two sizes such that the total of these shipments is within the established limits. The Committee staff performs the specified calculations and provides them to each handler. The regulatory period begins the third Monday in September, September 15, 2003. Each regulation week begins Monday at 12 a.m. and ends at 11:59 p.m. the following Sunday.
Section 905.153(d) provides the allowances for overshipments, loans, and transfers of allotment. These tolerances allow handlers the opportunity to supply their markets while limiting the impact of small sizes.
The Committee can also act on behalf of handlers wanting to arrange allotment loans or participate in the transfer of allotment. Repayment of an allotment loan is at the discretion of the handlers party to the loan. The Committee will inform each handler of the quantity of sizes 48 and 56 red seedless grapefruit they can handle during a particular week, making the necessary adjustments for overshipments and loan repayments.
Section 8e of the Act requires that whenever grade, size, quality, or maturity requirements are in effect for certain commodities under a domestic marketing order, including grapefruit, imports of that commodity must meet the same or comparable requirements. This rule does not change the minimum grade and size requirements under the order, only the percentages of sizes 48 and 56 red grapefruit that may be handled. Therefore, no change is necessary in the grapefruit import regulations as a result of this action.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own
There are approximately 75 grapefruit handlers subject to regulation under the order and approximately 11,000 growers of citrus in the regulated area. Small agricultural service firms, including handlers, are defined by the Small Business Administration (SBA) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
Based on industry and Committee data, the average annual f.o.b. price for fresh Florida red seedless grapefruit during the 2002-03 season was approximately $7.24 per
The over shipment of small-sized red seedless grapefruit contributes to poor returns and lower on-tree values. This rule limits the volume of sizes 48 and 56 red seedless grapefruit shipped during the first 22 weeks of the 2003-04 season by establishing weekly percentages for each of the 22 weeks, beginning September 15, 2003. This rule sets the weekly percentages at 45 percent for weeks 1 and 2, 35 percent for week 3 through week 19, and at 40 percent for weeks 20, 21, and 22. The quantity of sizes 48 and 56 red seedless grapefruit that may be shipped by a handler during a particular week is calculated using the percentages set. This action supplies enough small red seedless grapefruit, without saturating all markets with small sizes. This action will help stabilize the market and improve grower returns. This rule uses the provisions of § 905.153. Authority for this action is provided in § 905.52 of the order. The Committee unanimously recommended this action at a meeting on July 1, 2003.
While the establishment of volume regulation may necessitate additional spot picking, which could entail slightly higher harvesting costs, in most cases this is already a standard industry practice. The Barber study indicates spot picking would only fractionally increase harvesting costs on just a small segment of the boxes picked. In addition, with spot picking, the persons harvesting the fruit are more selective and pick only the desired sizes and qualities. This reduces the amount of time and effort needed in sorting fruit, because undersized fruit is not harvested. This may result in a cost savings through reduced processing and packing costs. In addition, because this regulation is only in effect for part of the season, the overall effect on costs is minimal. Consequently, this rule is not expected to appreciably increase costs to producers.
If a 25 percent restriction on small sizes had been applied during the 22-week period for the three seasons prior to the 1997-98 season, an average of 3.1 percent of overall shipments during that period would have been constrained by regulation. A large percentage of this volume most likely could have been replaced by larger sizes for which there are no volume restrictions. Under regulation, larger sizes have been substituted for smaller sizes with a nominal effect on overall shipments.
In addition, handlers can transfer, borrow or loan allotment based on their needs in a given week. Handlers also have the option of over shipping their allotment by 10 percent in a week, provided the over shipment is deducted from the following week's shipments. Approximately 227 loans and transfers were utilized last season. Statistics for 2002-03 show that, in only 2 weeks of the regulated period was the total available allotment used. Therefore, with the weekly percentages for the 2003-04 season set at the same levels as last season, the overall impact of this regulation on total shipments should be minimal.
The Committee believes establishing percentage of size regulation during the 2003-04 season will have benefits similar to those realized under past regulations. Handlers and producers have received higher returns under percentage of size regulation. In the three seasons prior to the first percentage of size regulation in 1997-98, prices of red seedless grapefruit fell from a weighted average f.o.b. price of $7.80 per carton in October to a weighted average f.o.b. price of $5.50 per carton in December. In the six seasons utilizing percentage of size regulation, red seedless grapefruit maintained higher prices throughout the season with a weighted average f.o.b. price of $8.10 per carton in October, to an average f.o.b. price of $7.06 per carton in December, and remained at around $6.90 in April. Average prices for the season have also been higher during seasons with percentage of size regulation. The average season price for red seedless grapefruit was $7.00 for the last six years compared to $5.83 for the three prior years.
On-tree earnings per box for fresh red seedless grapefruit have also improved under regulation, providing better returns to growers. The average on-tree price for fresh red seedless grapefruit was $4.42 for the seasons 1997-98 through 2001-02 with percentage of size regulation, compared to $3.08 for the three years prior to regulation. Small growers have struggled the last eight seasons to receive returns near the cost of production. For many, the higher returns provided by percentage of size regulation meant the difference between profit and loss.
Shipments during the 22 weeks covered by this regulation account for nearly 60 percent of the total volume of red seedless grapefruit shipped to the fresh market. Considering this volume and the very limited returns from grapefruit for processing, it is imperative that returns from the fresh market be maximized during this period. Even a small increase in price when coupled with the volume shipped represents a significant increase in the overall return to growers.
The Barber study stated that prices rose anywhere from 12.9 percent or $.72 to 17.5 percent or $1.00 per
The purpose of this rule is to help stabilize the market and improve grower returns. Percentage of size regulation is intended to reduce the volume of the least valuable fruit in the market, and shift it to those markets that prefer small sizes. This regulation helps the industry address marketing problems by keeping small sizes (sizes 48 and 56) more in balance with market demand without glutting the fresh market with these sizes.
This rule provides a supply of small-sized red seedless grapefruit sufficient to meet market demand, without saturating all markets with these small sizes. This action is not expected to decrease the overall consumption of red seedless grapefruit. With supply in excess of demand, this rule is not expected to impact consumer prices or demand. The benefits of this rule are expected to be available to all red
The Committee considered several alternatives when discussing this action. One alternative discussed was changing the way loans and transfers are handled. Another alternative discussed was changing the way allotment base is calculated. The Committee agreed both alternatives should first be thoroughly reviewed by the Regulation Subcommittee to consider options to bring before the full Committee.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements contained in this rule have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors.
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. However, red seedless grapefruit must meet the requirements as specified in the U.S. Standards for Grades of Florida Grapefruit (7 CFR 51.760 through 51.784) issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 through 1627).
The Committee's meeting was widely publicized throughout the citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the July 1, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
This rule invites comments on limiting the volume of small red seedless grapefruit entering the fresh market during the first 22 weeks of the 2003-04 season. Any comments received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Grapefruit, Marketing agreements, Oranges, Reporting and recordkeeping requirements, Tangelos, Tangerines.
7 U.S.C. 601-674.
This section establishes the weekly percentages to be used to calculate each handler's weekly allotment of small sizes. Handlers can fill their allotment with size 56, size 48, or a combination of the two sizes such that the total of these shipments are within the established weekly limits. The weekly percentages for size 48 (3
Agricultural Marketing Service, USDA.
Interim final rule with request for comments.
This rule removes the regulations for seeded grapefruit under the Florida citrus marketing order and for seeded grapefruit imported into the United States. The order regulates the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida (order) and is administered locally by the Citrus Administration Committee (committee). The change in the import regulation is required under section 8e of the Agricultural Marketing Agreement Act of 1937. Production of seeded grapefruit in Florida has declined to the point that removing seeded grapefruit from order requirements will have no significant impact on the grapefruit market. This rule also relaxes minimum grade requirements for domestic shipments of fresh Valencia and other late type oranges the last few weeks of the season. The volume remaining at the end of the season is small and has difficulty meeting grade requirements. This rule will help maximize shipments and returns for fresh Valencia and other late type oranges.
September 10, 2003; comments received by November 10, 2003 will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail:
William Pimental, Southeast Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 799 Overlook Drive, Suite A, Winter Haven, FL 33884; telephone: (863) 324-3375, Fax: (863) 325-8793; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement No. 84 and Marketing Order No. 905, both as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.
This rule removes the regulations for seeded grapefruit under the order for Florida citrus. Thus, handlers of seeded grapefruit are no longer subject to minimum grade, size, assessment, and reporting requirements under the order. Production has declined to the point that removing seeded grapefruit from order requirements will have no significant impact on the grapefruit market. This rule also relaxes the minimum grade requirements for domestic shipments of fresh Valencia and other late type oranges the last few weeks of the season. For the purposes of this interim final rule, the term “domestic shipments” includes shipments between the production area and any point outside thereof in the 48 contiguous States and the District of Columbia of the United States. The volume of fruit remaining at the end of the season is small and has difficultly meeting grade requirements. This rule will help the industry maximize fresh shipments and returns for Valencia and
Sections 905.51 and 905.52 of the order authorize the committee to recommend minimum grade and size regulation to USDA. The grade and size requirements are designed to provide fresh markets with citrus fruit of acceptable quality and size. This helps create buyer confidence and contributes to stable marketing conditions. This is in the interest of growers, handlers, and consumers, and is designed to increase returns to Florida citrus growers.
Section 905.306 of the order's rules and regulations specifies the minimum grade and size requirements for different varieties of fresh Florida citrus. Such requirements for domestic shipments are specified in § 905.306 in Table I of paragraph (a), and for export shipments in Table II of paragraph (b). Currently, the minimum grade for domestic seeded grapefruit is a U.S. No. 1 as specified in the U.S. Standard for Grades of Florida Grapefruit (7 CFR 51.750 through 51.784), with a minimum size of 3
Under §§ 905.51 and 905.52 of the order, the committee has authority to recommend to USDA the varieties of citrus to be regulated. This rule modifies § 905.306 by removing seeded grapefruit from the list of entries in Table I of paragraph (a), and in Table II of paragraph (b). The removal of seeded grapefruit from these tables has the effect of removing the grade and size requirements for seeded grapefruit under the order. Also, assessment and reporting requirements would no longer apply to seeded grapefruit. In addition, this rule further amends Table I of § 905.306 by reducing the minimum grade requirements for domestic shipments of fresh Valencia and other late type oranges from U.S. No. 1 to U.S. No. 2 external grade from June 15 to July 31, each season.
In making its recommendation, the committee recognized that seeded grapefruit is no longer significant in terms of shipments and market share. During the 2002-03 season, only 150 cartons of seeded grapefruit were shipped to the fresh market. This is down from 4,705 cartons shipped in the 1998-99 season. Currently, shipments of seeded grapefruit represent less than .0005 percent of fresh shipments of Florida grapefruit. Seeded grapefruit production has declined as new seedless varieties have been developed and planted. Consequently, the committee determined that removing seeded grapefruit varieties from the order regulations will not have a negative impact on the grapefruit market.
In addition, this rule also relaxes the minimum grade requirements for domestic shipments of fresh Valencia and other late oranges. The committee recommended reducing the minimum grade requirements for Valencia and other late type oranges from a U.S. No. 1 to a U.S. No. 2 external grade with a U.S. No. 1 internal grade from June 15, 2004, to July 31, 2004, and during the same period of each season thereafter. Valencia and late type oranges have difficulty meeting grade requirements late in the season. This is usually due to regreening, which is considered a defect under the U.S. Standard for Grades of Oranges.
At the end of the season growers still have a limited volume of unharvested Valencia and late type oranges. The volume of fruit remaining after June 15 is small, averaging less than 5 percent of the crop over the last 5 years. The committee believes that permitting the shipment of a U.S. No. 2 external grade during the specified time would help the industry maximize fresh shipments and returns for Valencia and other late type oranges. Consequently, the committee recommended that during the period June 15 to July 31 the grade standard be lowered to U.S. No. 2 external grade with U.S. No. 1 internal grade for Valencia and other late type oranges shipped to domestic markets.
Section 8e of the Act provides that when certain domestically produced commodities, including grapefruit, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this rule removes the minimum size and grade requirements for seeded grapefruit under the domestic handling regulations, a corresponding change to the import regulations is necessary.
Minimum grade and size requirements for grapefruit imported into the United States are currently in effect under § 944.106 (7 CFR 944.106). The minimum grade and size requirements are specified in a table in paragraph (a) of § 944.106. This rule removes the minimum grade and size requirements for imported seeded grapefruit to reflect the change being made under the order for seeded grapefruit grown in Florida.
Section 8e import requirements for oranges are based on the marketing order for South Texas oranges and as such will not be impacted by this relaxation.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 75 grapefruit and Valencia and other late type orange handlers subject to regulation under the order, approximately 11,000 producers of Florida citrus in the regulated area, and approximately 10 grapefruit importers. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.
Based on industry and Committee data, the average annual f.o.b. price for fresh Florida grapefruit during the 2002-03 season was approximately $7.24 per
This rule removes seeded grapefruit from regulation under the order. Handlers of seeded grapefruit will no longer be required to meet the minimum grade and size requirements and will not be subject to assessments and reporting requirements. Removing these varieties from the minimum grade and size requirements will have no significant impact on the grapefruit market. This rule also reduces the minimum grade requirements for domestic shipments of fresh Valencia and other late type oranges from U.S. No. 1 to U.S. No. 2 external grade from June 15 to July 31 each season. This rule will help maximize shipments and returns for fresh Valencia and other late type oranges.
Sections 905.51 and 905.52 of the order authorize the committee to recommend minimum grade and size regulation to USDA. Section 905.306 of the order's rules and regulation specifies the regulation period and the minimum grade and size requirements for different varieties of fresh Florida citrus. The Committee unanimously recommended this action at a meeting on July 1, 2003.
During the 2002-2003 season, only 150 cartons of seeded grapefruit were shipped out of a total of 28.3 million
Valencia and late type oranges have difficulty meeting grade requirements late in the season. At the end of the season, growers still have a limited volume of unharvested Valencia and late type oranges. The volume of fruit remaining after June 15 is small, averaging less than 5 percent of the crop over the last 5 years. The committee believes permitting the shipment of a U.S. No. 2 external grade with a minimum U.S. No. 1 internal grade from June 15 to July 31 for domestic shipments will help the industry maximize fresh shipments and returns for Valencia and other late type oranges.
This rule is expected to have a positive impact on affected entities as it relaxes handling requirements. With this rule removing seeded grapefruit from the varieties regulated, handlers will be able to market these varieties free from order requirements. In addition, the relaxation in grade requirements from June 15 to July 31 each season for Valencia and other late type oranges will allow handlers to make additional supplies available for the fresh domestic market, thus, increasing returns. No additional costs are imposed on growers, handlers, and importers with this rule. The benefits derived from this change are expected to benefit both large and small entities equally.
During the period January 1 through December 31, 2002, imports of grapefruit totaled 23,246 metric tons (approximately 1,100,000 cartons). The Bahamas were the principal source, accounting for nearly 99 percent of the total. Remaining imports were supplied by Israel. Most imported grapefruit enters the United States from October through May.
Section 8e of the Act provides that when certain domestically produced commodities, including grapefruit, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality and maturity requirements. Because this rule changes the requirements for domestic seeded grapefruit shipments, this change must also be applicable to imported grapefruit. This rule removes the import requirements for seeded grapefruit. This regulation will benefit importers to the same extent that it benefits Florida grapefruit producers and handlers.
One alternative to this action was to make no changes to the order's handling regulations. However, the committee believes seeded grapefruit varieties have no significant impact on the grapefruit market and that action should be taken to remove them from the handling regulations. In addition, the committee believes making additional supplies of oranges available late in the season may increase returns. Therefore, the alternative of making no changes was rejected.
This rule will not impose any additional reporting or recordkeeping requirements on either small or large citrus handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Further, the Committee's meeting was widely publicized throughout the citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the July 1, 2003, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
This rule invites comments on the removal of seeded grapefruit from requirements currently prescribed under the marketing order for Florida citrus and the grapefruit import regulation. This rule also invites comments on the relaxation of minimum grade requirements for fresh Valencia and other late type oranges. Any comments received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this rule.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Grapefruit, Marketing agreements, Oranges, Reporting and recordkeeping requirements.
Avocados, Food grades and standards, Grapefruit, Grapes, Imports, Kiwifruit, Limes, Olives, Oranges.
7 U.S.C. 601-674.
The revisions to Table I read as follows:
(a) * * *
Office of Thrift Supervision, Treasury.
Final rule.
The Office of Thrift Supervision (OTS) is issuing a final rule amending its regulation governing agency offices of federal savings associations to conform that regulation to recent changes to OTS's fiduciary activities regulations. OTS is also removing an incorrect parenthetical in 12 CFR 550.136, OTS's regulation governing the extent to which state law applies to the fiduciary activities of a federal savings association.
September 9, 2003.
Timothy P. Leary, Counsel (Banking & Finance), Regulations and Legislation Division, (202) 906-7170, Kevin Corcoran, Special Counsel, Business Transactions Division, (202) 906-6962, Office of the Chief Counsel; or Judith McCormick, Trust Specialist, Examination Policy Division, (202) 906-5636, Office of Supervision, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
On December 12, 2002, OTS amended its regulations governing the fiduciary activities of federal savings associations, found at 12 CFR part 550.
To minimize potential confusion about applicable procedures, OTS today is conforming its agency office regulation, 12 CFR 545.96, to reflect this change in the fiduciary activities regulations. Under subparagraph (a) of § 545.96, a federal savings association may, without OTS's approval, establish and maintain agency offices that only service and originate (but not approve) loans and contracts, or manage or sell real estate owned by the federal savings association. Subparagraph (b) of the regulation states that, except for payment on savings accounts, a federal savings association may conduct activities not listed in subparagraph (a) at an agency office with OTS approval. The regulation does not currently address fiduciary activities, nor does it indicate how it interacts with part 550.
In the preamble to the proposed amendments to § 550.70, OTS explained in detail why a new fiduciary powers application was not necessary when a federal savings association wanted to conduct already approved fiduciary activities in a new state:
When OTS reviews an initial application for fiduciary powers, it analyzes a number of factors including, among others, the federal savings association's financial and managerial resources, its history of regulatory compliance, and level of fiduciary expertise [citation omitted]. In light of this initial review, OTS believes that a new application is not always necessary to ensure safe and sound fiduciary operations when a federal savings association with existing trust powers expands its operations. * * * Application and notice requirements under the proposed rule would distinguish between new activities that materially differ from previously approved fiduciary activities and other types of activities. * * * [T]he proposed rule would require a federal savings association with previously approved trust powers to submit a complete trust application and obtain prior OTS approval before it may conduct fiduciary activities that are materially different from activities approved in the initial trust application. * * * OTS does not believe that a federal savings association engages in materially different activities when it merely expands the geographic scope of previously approved activities. Accordingly, the proposed rule would not require a new application before the federal savings association commences such activities.
Accordingly, OTS believes that it does not need to approve an agency office that a federal savings association creates to conduct these activities. OTS therefore is amending 12 CFR 545.96 to add fiduciary activities to subparagraph (a). Under the new rule, a federal savings association may, without OTS approval, establish and maintain an agency office that engages only in one or more of the following activities: (1) Servicing or originating (but not approving) loans and contracts; (2) managing or selling real estate owned by the federal savings association; or (3) conducting fiduciary activities or activities ancillary to the association's fiduciary business. Under 12 CFR 550.70, of course, when an association establishes an agency office to conduct fiduciary activities in a new state, the association must file, within ten days after commencing those activities, a written notice containing the information required under 12 CFR 550.125.
OTS is also amending 12 CFR 550.136 to remove an incorrect reference to state law. Section 550.136 did not appear in the proposed rule, published on June 11, 2002, but was adopted in response to comments on different language that had been proposed. It was published for the first time on December 12, 2002 and became effective January 1, 2003. Since the effective date, it has come to OTS's attention that one of the parenthetical descriptions in that section is incorrect.
Specifically, in the list of state laws that apply to the fiduciary operations of federal savings associations by virtue of 12 U.S.C. 1464(n), OTS included a reference to “State laws regarding * * * investments in state trust companies.” Section 1464(n), however, contains no reference to state laws regarding thrift investments in state trust companies. Accordingly, we are amending § 550.136(a) to remove the reference to state laws regarding investments in state trust companies.
OTS finds that there is good cause to dispense with prior notice and comment on this final rule and with the 30-day delay of effective date mandated by the Administrative Procedure Act.
Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 provides that regulations that impose additional reporting, disclosure, or other new requirements may not take effect before the first day of the quarter following publication.
An initial regulatory flexibility analysis under the Regulatory Flexibility Act (RFA) is required only when an agency must publish a notice of proposed rulemaking.
OTS has determined that this final rule does not constitute a “significant regulatory action” for purposes of Executive Order 12866.
OTS has determined that the final rule will not result in expenditures by state, local, or tribal governments or by the private sector of $100 million or more. Accordingly, this rulemaking is not subject to section 202 of the Unfunded Mandates Act.
Accounting, Consumer protection, Credit, Electronic funds transfers, Investments, Reporting and recordkeeping requirements, Savings associations.
Savings associations, Trusts and trustees.
12 U.S.C. 1462a, 1463, 1464, 1828.
(a)
* * *Accordingly, Federal savings associations may exercise fiduciary powers as authorized under Federal law, including this part, without regard to State laws that purport to regulate or otherwise affect their fiduciary activities, except to the extent provided in 12 U.S.C. 1464(n) (State laws regarding scope of fiduciary powers, access to examination reports regarding trust activities, deposits of securities, oaths and affidavits, and capital) or in paragraph (c) of this section.
By the Office of Thrift Supervision.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Sabreliner Model NA-265 series airplanes, modified by Sabreliner Corporation. These modified airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. The modification incorporates the installation of Air Data systems that perform critical functions by providing altitude, airspeed, or other critical data. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for the protection of these systems from the effects of high-intensity radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that provided by the existing airworthiness standards.
The effective date of these special conditions is August 28, 2003. Comments must be received on or before October 9, 2003.
Comments on these special conditions may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM263, 1601 Lind Avenue SW., Renton, Washington, 98055-4056; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked: Docket No. NM263.
Mark Quam, FAA, Standardization Branch, ANM-113, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98055-4056; telephone (425) 227-2145; facsimile (425) 227-1149.
The FAA has determined that notice and opportunity for prior public comment are impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On May 21, 2003, Sabreliner Corporation, Pierre Laclede Center, 7733 Forsyth Boulevard, Suite 1500, St. Louis, Missouri 63105-1821, applied for a supplemental type certificate (STC) to modify Sabreliner Model NA-265 series airplanes. These airplanes are approved under Type Certificate No. A2WE. The Model NA-265 series are small transport category airplanes powered by two aft-mounted Pratt and Whitney Turbo Wasp JT12A engines, with the exception of the Model NA-265-65, which has two Air Research TFE731 turbofan engines, and the Model NA-265-80, which has two GE Model CF700 turbofan engines. These airplanes operate with a 2-pilot crew and can hold from 4 to 10 passengers depending on the model within the series. The NA-265 series have a maximum takeoff weight of 17,450 to 24,000 pounds, depending on the brake installation and model within the series.
The modification incorporates the installation of Air Data systems (combinations of Air Data Display Units, Air Computer, Air Data Sensor, and/or Altimeter) that perform critical functions by providing altitude, airspeed, or other critical data. These systems use electronics to a far greater extent than the original instrument systems, and may be more susceptible to electrical and magnetic interference caused by high-intensity radiated fields (HIRF). The disruption of these signals could result in loss of altitude, or present misleading information to the pilot.
Under the provisions of 14 CFR 21.101, Sabreliner Corporation must
If the Administrator finds that the applicable airworthiness regulations (that is, CAR 4b, as amended) do not contain adequate or appropriate safety standards for the Sabreliner Model NA-265 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
In addition to the applicable airworthiness regulations and special conditions, the Sabreliner Model NA-265 series airplanes must comply with the fuel vent and exhaust emission requirement of SFAR 27 (now codified as 14 CFR part 34) and the noise certification requirements of 14 CFR part 36.
Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101.
Special conditions are initially applicable to the model for which they are issued. Should Sabreliner Corporation apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A2WE to incorporate the same or similar novel or unusual design features, these special conditions would also apply to the other model under the provisions of § 21.101.
As noted earlier, the Sabreliner Model NA-265 series airplanes modified by Sabreliner Corporation will incorporate the installation of Air Data systems that perform critical functions. Because these advanced systems use electronics to a far greater extent than the original altimetry system, they may be more susceptible to electrical and magnetic interference caused by high-intensity radiated fields (HIRF) external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, these systems are considered to be a novel or unusual design feature.
There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.
To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Model NA-265 series airplanes, modified by Sabreliner to include the new Air Data systems. These special conditions require that the Air Data systems, which perform critical functions, be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.
With the trend toward increased power levels from ground-based transmitters, and the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical digital avionics/electronics and electrical systems to HIRF must be established.
It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 OR 2 below:
1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.
a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.
b. Demonstration of this level of protection is established through system tests and analysis.
2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.
The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.
As discussed above, these special conditions are applicable to Sabreliner Model NA-265 series airplanes modified by Sabreliner. Should Sabreliner Corporation apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A2WE to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101.
This action affects only certain novel or unusual design features on Sabreliner
The substance of these special conditions has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for Sabreliner Model NA-265 series airplanes modified by Sabreliner Corporation.
1.
2. For the purpose of these special conditions, the following definition applies:
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Gulfstream Aerospace LP 1125 Westwind Astra airplanes modified by Garrett Aviation Services. These modified airplanes will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. The modification incorporates the upgrade of one Air Data Computer system and the installation of a second Air Data Computer system, both of which perform critical functions. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for the protection of these systems from the effects of high-intensity-radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that provided by the existing airworthiness standards.
The effective date of these special conditions is August 28, 2003. Comments must be received on or before October 9, 2003.
Comments on these special conditions may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM264, 1601 Lind Avenue SW., Renton, Washington 98055-4056; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked: Docket No. NM264.
Meghan Gordon, FAA, Standardization Branch, ANM-113, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (425) 227-2138; facsimile (425) 227-1149.
The FAA has determined that notice and opportunity for prior public comment is impracticable, because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment close date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late, if it is possible to do so without incurring expense or delay. We may change these special conditions, based on the comments we receive.
If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On July 2, 2003, Garrett Aviation Services, 1200 North Airport Drive, Capital Airport, Springfield, IL 62707, applied for a supplemental type certificate (STC) to modify Gulfstream Aerospace LP Model 1125 Westwind Astra airplanes approved under Type Certificate No. A16NM. The Model 1125 Westwind Astra is a small transport category airplane, powered by two Turbofan Engines; the airplane has a maximum takeoff weight of 24,800 pounds. The Model 1125 Westwind Astra operates with a 2-pilot crew and holds up to 9 passengers. The modification incorporates the upgrade
Under the provisions of 14 CFR 21.101, Garrett Aviation Services must show that the Model 1125 Westwind Astra airplanes, as modified, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A16NM or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the Model 1125 Westwind Astra airplanes includes 14 CFR part 25, dated February 1, 1965, through Amendment 25-54, except for special conditions and exceptions noted in Type Certificate Data Sheet (TCDS) A16NM.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Aerospace LP 1125 Westwind Astra airplanes modified by Garrett Aviation Services must comply with the fuel vent and exhaust requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy pursuant to § 611 of Public Law 92-574, the “Noise Control Act of 1972.”
Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101.
Special conditions are initially applicable to the model for which they are issued. Should Garrett Aviation Services apply at a later date for a supplemental type certificate to incorporate the same or similar novel or unusual design features, these special conditions would also apply to the other model.
As noted earlier, the Gulfstream Aerospace LP Model 1125 Westwind Astra airplanes modified by Garrett Aviation Services will incorporate the upgrade of the single Rockwell Collins ADS-85 Air Data System and the installation of an Innovative Solutions & Support Air Data Display Unit and a 2-inch Standby Altimeter that will perform critical functions. These systems may be vulnerable to HIRF external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, these systems are considered to be a novel or unusual designs.
There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.
To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Gulfstream Aerospace LP Model 1125 Westwind Astra airplanes modified by Garrett Aviation Services. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.
With the trend toward increased power levels from ground-based transmitters and the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.
It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:
1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.
a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.
b. Demonstration of this level of protection is established through system tests and analysis.
2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.
The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.
As discussed above, these special conditions are applicable to Gulfstream Aerospace LP Model 1125 Westwind Astra airplanes modified by Garrett Aviation Services. Should Garrett Aviation Services apply at a later date for a supplemental type certificate to modify any other model included on the Type Certificate No. A16NM to incorporate the same or similar novel or unusual design features, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Gulfstream Aerospace LP Model 1125 Westwind Astra airplanes modified by Garrett Aviation Services. It is not a rule of general applicability and affects only the applicant which applied to the FAA for approval of these features on the airplanes.
The substance of these special conditions has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and record keeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Gulfstream Aerospace LP Model 1125 Westwind Astra airplanes modified by Garrett Aviation Services.
1.
2. For the purpose of these special conditions, the following definition applies:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for Rolls-Royce plc (RR) Trent 768-60, Trent 772-60, and Trent 772B-60 turbofan engines. This AD requires removal from service of certain part numbers of high pressure (HP) compressor rotor shafts, based on a newly established reduced life limit. This AD is prompted by reports of HP compressor drums with small cracks in blade loading slots found at overhaul inspection. The HP compressor drums are an integral part of the HP compressor rotor shaft. We are issuing this AD to prevent possible uncontained HP compressor drum failure, which could result in damage to the airplane.
Effective September 24, 2003.
We must receive any comments on this AD by November 10, 2003.
Use one of the following addresses to submit comments on this AD:
• By mail: The Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-NE-29-AD, 12 New England Executive Park, Burlington, MA 01803-5299.
• By fax: (781) 238-7055.
• By e-mail:
You may examine the AD docket at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.
James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7176; fax (781) 238-7199.
The Civil Aviation Authority, (CAA), which is the airworthiness authority for the U.K., recently notified the FAA that an unsafe condition may exist on Rolls-Royce plc Trent 768-60, Trent 772-60, and Trent 772B-60 turbofan engines. The CAA advises that it has received overhaul inspection reports of HP compressor drums with small cracks in blade loading slots. The HP compressor drums are an integral part of the HP compressor rotor shaft. The manufacturer is currently analyzing parts from the field, and has not yet
Although none of these affected engine models are used on any airplanes registered in the United States, the possibility exists that the engine models could be used on airplanes that are registered in the United States in the future. Since an unsafe condition has been identified that is likely to exist or develop on other Rolls-Royce plc Trent 768-60, Trent 772-60, and Trent 772B-60 turbofan engines of the same type design, we are issuing this AD to prevent possible uncontained HP compressor drum failure, which could result in damage to the airplane. The HP compressor drums are an integral part of the HP compressor rotor shaft. This AD requires removal from service of certain part numbers of HP compressor rotor shafts, based on a newly established reduced life limit of 4,200 CSN.
This engine model is manufactured in the U.K., and is type certificated for operation in the United States under section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. In keeping with this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. We have examined the findings of the CAA, reviewed all available information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Since there are currently no domestic operators of this engine model, notice and opportunity for public comment before issuing this AD are unnecessary. Therefore, we can adopt this regulation immediately.
On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs our AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You may get more information about plain language at
You may examine the AD Docket (including any comments), between 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 24, 2003.
(b) None.
(c) This AD applies to Rolls-Royce plc (RR) Trent 768-60, Trent 772-60, and Trent 772B-60 turbofan engines. These engines are installed on, but not limited to Airbus A330 series airplanes.
(d) This AD is prompted by reports of high pressure (HP) compressor drums with small cracks in blade loading slots found at overhaul inspection. We are issuing this AD to prevent possible uncontained HP compressor drum failure, which could result in damage to the airplane.
(e) You are responsible for having the actions required by this AD performed within
(f) Remove HP compressor rotor shafts, part numbers (P/Ns) FK24031 (pre RR Service Bulletin (SB) RB.211-72-B172), FK22745 (SB RB.211-72-B172), FK23313 (SB RB.211-72-B261 and pre SB RB.211-72-B653), FK25502 (SB RB.211-72-B653), FK26185 (SB RB.211-72-B921), FK32129 (SB RB.211-72-C746), FW20195 (SB RB.211-72-D533), FW20196 (SB RB.211-72-D533), FW20197 (SB RB.211-72-D533), and FW20638 (SB RB.211-72-D533) from service at or before accumulating 4,200 cycles-since-new (CSN).
(g) After the effective date of this AD, do not install any HP compressor rotor shaft, P/Ns FK24031 (pre RR SB RB.211-72-B172), FK22745 (SB RB.211-72-B172), FK23313 (SB RB.211-72-B261 and pre SB RB.211-72-B653), FK25502 (SB RB.211-72-B653), FK26185 (SB RB.211-72-B921), FK32129 (SB RB.211-72-C746), FW20195 (SB RB.211-72-D533), FW20196 (SB RB.211-72-D533), FW20197 (SB RB.211-72-D533), or FW20638 (SB RB.211-72-D533), that exceeds 4,200 CSN.
(h) The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(i) None.
(j) CAA airworthiness directive 003-12-2001, dated February 26, 2002, and Rolls-Royce plc Mandatory Service Bulletin No. RB.211-72-D586, Revision 1, dated February 26, 2002, also address the subject of this AD.
Federal Aviation Administration, DOT.
Final rule; correction.
This document corrects a typographical error that appeared in airworthiness directive (AD) 2003-12-04, which was published in the
Effective July 17, 2003.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Airworthiness Directive (AD) 2003-12-04, amendment 39-13189, applicable to certain EMBRAER Model EMB-135 and -145 series airplanes, was published in the
As published, paragraph (a)(2) of the AD cites an incorrect part number (145-35923-007) for the replacement supports for the engine bleed air duct. The correct part number is 145-35923-015.
Since no other part of the regulatory information has been changed, the final rule is not being republished in the
The effective date of this AD remains July 17, 2003.
(2) For airplanes having serial numbers listed in paragraph 3.G. of the Accomplishment Instructions of the service bulletin: Replace the two supports for the engine bleed air duct with two new supports having part number 145-35923-015.
Federal Aviation Administration (FAA), DOT.
Correcting amendment.
This document contains a correction to the final rule (FAA-2003-15409; 03-ASO-8), which was published in the
Effective 0901 UTC, October 30, 2003.
Walter R. Cochran, Manager, Airspace Branch, Air Traffic Division, Federal Aviation Administration, PO Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5586.
Designations for Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR part 71.1 The Class E designation listed in this document will be published subsequently in the Order.
As published, the final rule contains an error which incorrectly identifies the
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Montgomery Regional Airport-Dannelly Field, and within 4 miles east and 8 miles west of the Montgomery VORTAC 138° radial extending from the 7-mile radius to 16 miles southeast of the Montgomery VORTAC, and within a 7-mile radius of Maxwell AFC and within a 7-mile radius of Autauga County Airport and within a 6.3-mile radius of Wetumpka Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Direct final rule; confirmation of effective date.
This document confirms the effective date of the direct final rule which revises Class E airspace at Elkhart, KS.
0901 UTC, October 30, 2003.
Kathy Randolph, Air Traffic Division, Airspace Branch, ACE-520C DOT Regional Headquarters Building, Federal Aviation Administration, 901 Locust, Kansas City, MO 64106; telephone: (816) 329-2525.
The FAA published this direct final rule with a request for comments in the
Federal Aviation Administration (FAA), DOT.
Direct final rule; confirmation of effective date.
This document confirms the effective date of the direct final rule which revises Class E airspace at Vinton, IA.
0901 UTC, October 30, 2003.
Kathy Randolph, Air Traffic Division, Airspace Branch, ACE-520C, DOT Regional Headquarters Building, Federal Aviation Administration, 901 Locust, Kansas City, MO 64106; telephone: (816) 329-2525.
The FAA published this direct final rule with a request for comments in the
Federal Aviation Administration (FAA), DOT.
Direct final rule; confirmation of effective date.
This document confirms the effective date of a direct final rule which revises Class E airspace at Wichita Mid-Continent Airport, KS.
0901 UTC, October 30, 2003.
Kathy Randolph, Air Traffic Division, Airspace Branch, ACE-520C, DOT Regional Headquarters Building, Federal Aviation Administration, 901 Locust, Kansas City, MO 64106; telephone: (816) 329-2525.
The FAA published this direct final rule with a request for comments in the
Federal Aviation Administration (FAA), DOT.
Direct final rule; confirmation of effective date.
This document confirms the effective date of the direct final rule which revises Class E airspace at Sioux Center, IA.
0901 UTC, October 30, 2003.
Kathy Randolph, Air Traffic Division, Airspace Branch, ACE-520C, DOT Regional Headquarters Building, Federal Aviation Administration, 901 Locust, Kansas City, MO 64106; telephone: (816) 329-2525.
The FAA published this direct final rule with a request for comments in the
Federal Aviation Administration (FAA), DOT.
Direct final rule; request for comments; correction.
This action corrects a direct final rule; request for comments that was published in the
This direct final rule is effective on 0901 UTC, October 30, 2003.
Brenda Mumper, Air Traffic Division, Airspace Branch, ACE-520A, DOT Municipal Headquarters Building, Federal Aviation Administration, 901 Locust, Kansas City, MO 64106; telephone: (816) 329-2524.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This action corrects an error in the airport coordinates in the final rule for the Pilot Point Airport that were published in the
0901 UTC, October 30, 2003.
Derril Bergt, Operations Branch, AAL-531, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-2796; fax: (907) 271-2850; e-mail:
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective September 9, 2003. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 9, 2003.
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The Flight Inspection Area Office which originated the SIAP; or,
4. The Office of Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: PO Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Mine Safety and Health Administration, Labor.
Final rule.
The Mine Safety and Health Administration (MSHA) is issuing a final rule for underground coal mines in response to dangers to which miners are exposed during mine fire, explosion, and gas or water inundation emergencies. This final rule establishes two new standards concerning
On December 12, 2002, MSHA published an emergency temporary standard (ETS) which required operators of underground coal mines to designate for each shift that miners are underground, a responsible person to take charge during mine fire, explosion and gas or water inundation emergencies. In addition, the ETS required the responsible person to conduct an immediate mine evacuation when there is a mine emergency that presents an imminent danger to miners due to fire, explosion or gas or water inundation. The ETS also broadened the existing requirements for a program of instruction for firefighting and evacuation to address fire, explosion, and gas or water inundation emergencies. Finally, the ETS revised the part 48 training requirements to reflect that annual refresher training includes a review of the mine fire, explosion, and gas or water inundation emergency evacuation and firefighting plans in effect at the mine. In accordance with the Federal Mine Safety and Health Act of 1977 (Mine Act), the ETS must be replaced by final standards no later than 9 months after publication of the ETS. This final rule supercedes the ETS.
This final rule is effective September 9, 2003.
Marvin W. Nichols Jr., Director; Office of Standards, Regulations, and Variances, MSHA; phone: (202) 693-9440; facsimile: (202) 693-9441; E-mail:
This rule is issued in accordance with sections 101(b) and 115 (30 U.S.C. 811, 825), of the Federal Mine Safety and Health Act of 1977 (Mine Act). An Emergency Temporary Standard (ETS) was promulgated December 12, 2002 (67 FR 76658). The ETS was effective immediately upon publication. The ETS established two new standards in subpart P; § 75.1501,
In accordance with section 101(b)(3) of the Mine Act, the ETS also served as a proposed rule. The preamble to the proposed rule discussed specific provisions and MSHA solicited comments on those provisions. You can view comments filed in response to the
Section 75.1501 requires an operator to designate a responsible person to take charge when a mine emergency involving a fire, explosion, or gas or water inundation presents an imminent danger to miners. Section 75.1501 also requires that miners receive instruction on the identity of the responsible person designated by the operator for their workshift.
Section 75.1101-23 was redesignated as § 75.1502 and revised to include all mine emergencies resulting from a fire, an explosion, or a gas or water inundation (67 FR 76658, Dec. 12, 2002). This final rule §75.1502 requires that firefighting and evacuation plans address these emergencies; that miners be trained in all elements of the mine emergency evacuation and firefighting plan; and that mine operators instruct miners regarding any revisions to the plan after its submission to MSHA for approval.
Section 48.8, paragraph (b)(4), is amended to include in the annual refresher training of miners, a review of the emergency evacuation and firefighting plans in effect at the mine.
MSHA held four public hearings on the proposed rule in Lexington, Kentucky on February 4, 2003; Grand Junction, Colorado on February 6, 2003; Charleston, West Virginia on February 11, 2003; and Pittsburgh, Pennsylvania on February 13, 2003. The comment period closed on February 28, 2003. This final rule addresses all of the relevant comments received on the proposed rule.
In accordance with the requirements of § 553(d) of the Administrative Procedure Act (5 U.S.C. 553), MSHA publishes a final rule in the
One of the primary purposes of the delayed effective date requirement is to provide affected persons or industries with adequate time to prepare for compliance with the rule. MSHA's final rule on Emergency Evacuations published in today's
In addition, the agency's ETS on Emergency Evacuations will expire on September 12, 2003. The expiration of the ETS would leave a critical void in miners' safety if the final rule is not effective by that date. For these reasons, MSHA finds good cause to waive the requirement for a delayed effective date, thereby allowing the final rule to be effective today, upon publication in the
During the past three years, at least 14 miners have died in two accidents as a result of faulty mine evacuations. Explosions at the Jim Walter Resources, Inc. No. 5 Mine in Alabama on September 23, 2001, resulted in 13 fatalities. An initial roof fall and explosion occurred at 5:20 p.m. and resulted in injuries to four miners. One of the four miners was severely injured and could not move. Miners from other parts of the mine responded in an ill-coordinated effort. The response was marked by confusion. For example, after the Carbon Monoxide (CO) Room operator (monitoring the CO monitoring system at the mine) was notified of the explosion, he attempted to locate the afternoon shift haulage foreman who he believed was working at the mine. This foreman was not working that shift. There was also some confusion about where the first explosion occurred.
By the time the second explosion occurred at 6:15 p.m., 12 additional miners traveled towards the initial explosion site and these miners entered the affected area without gas detection equipment. Seven additional miners were directed to travel to the emergency area, but the 6:15 p.m. explosion occurred before they arrived in the area of the initial explosion. It is uncertain whether the miner immobilized by the first explosion died as a result of the first or second explosion. It is certain, however, that 12 additional miners died from the second explosion as they were attempting to reach the injured miner.
MSHA's accident investigation team determined that, in addition to not following proper evacuation procedures after the initial explosion, there was never a mine wide evacuation initiated at the mine, even after an explosion damaged critical ventilation controls. MSHA's accident investigation team determined that gas detection equipment was not found on any of the fatally injured miners nor did the accident investigation find such equipment in the affected section where the explosion occurred. Gas detection equipment is essential to determine the composition of the mine atmosphere and to secure the safety of those entering unknown atmospheres, especially when ventilation controls are damaged. MSHA's accident investigation report concluded that the lack of training and the failure to conduct fire and emergency drills relative to proper evacuation procedures “affected the miners' response” to the emergency situation of September 2001.
While one commenter to the proposed rule stated that the Jim Walter accident was an “aberrational situation,” MSHA notes that every mine accident is unique and may present different facts and circumstances. MSHA has carefully reviewed this accident, and believes that the final rule is appropriately proactive in developing a systematic procedure for responding to mine emergencies. MSHA has determined that had a responsible person knowledgeable about the mine safety systems taken charge of the evacuation and rescue effort, fewer miners would have been permitted to remain underground or re-enter the affected mine area during the mine emergency.
Under this rule, all miners underground who were not essential to providing a mine emergency response to the explosion would have immediately evacuated the mine. In addition, the responsible person could have assured that the miners attempting a rescue were equipped with gas detection equipment. Moreover, miners would have understood, from mine emergency evacuation and firefighting training, that an evacuation was necessary and that they should not re-enter the emergency areas without instruction and appropriate safety equipment.
On July 31, 2000, four explosions occurred at the Willow Creek mine in Utah. The initial explosion and subsequent fire occurred approximately seven minutes before the later explosions that killed two miners. One commenter to the proposed rule noted that it was inappropriate to use the Willow Creek accident to justify the ETS because the commenter believed the mine responded appropriately and evacuated expeditiously. After careful review of the accident, MSHA has concluded that the fatalities may have
Mine emergencies that trigger the need to evacuate include inundations. There have been two water inundations and one gas inundation where miners have died. In 1968, Saxsewell No. 8 Mine in Hominy Falls, West Virginia, experienced an inundation of water when a continuous miner cut through into the workings of an abandoned mine. There were 26 men in the mine at the time of the occurrence. One man escaped from the mine unassisted, but the others were trapped in the mine. Fifteen miners were rescued five days later and six others were rescued 10 days after the inundation occurred. Four men were fatally injured. In 1977, in Tower City, Pennsylvania, at Porter Tunnel, an inundation of water entered the mine through a breach in the mine floor at the low side rib in the gangway. The water had accumulated in the unmapped abandoned workings and broke through the floor of the advancing gangway. The inundation caused the death of nine miners, injuries to three and entrapment of one who was eventually rescued. Six miners in the affected section escaped safely through the return air emergency escapeway leading to the surface. The miners in the other sections, 65 in all, traveled both the intake and return air escapeways leading to the surface.
In 1978 at Moss 3 Mine in Duty, Virginia, water inundated some abandoned sections in the mine soon after work began on a 265 foot single-entry drainway to connect an abandoned area of the mine to the surface. On April 4, 1978, four men were working to advance the drainway into an abandoned mined-out area. Although the air in the abandoned area was not tested after a test borehole penetrated the area, the continuous miner was used to penetrate into the abandoned area. Immediately after breaching into the abandoned area, the drainway was inundated with blackdamp (oxygen-deficient air). Two of the four miners who were advancing the drainway successfully retreated to the surface. The other two miners perished. The blackdamp also killed three other miners who went underground without protective equipment to search for the missing men. Similarly unequipped during rescue attempts, two other men were also overcome with blackdamp, but were successfully assisted to the surface.
A commenter asked that MSHA consider certain mine accidents that occurred during the last two years to determine whether there were deficiencies in the mine operator's emergency response. The commenter specifically asked MSHA to consider: the July 24, 2002 water inundation at Quecreek No. 1 Mine in Pennsylvania; the April 17, 2002 fire at the Blue Diamond mine in Kentucky; the September 16, 2002 fire at the Fairfax mine in West Virginia; the January 6, 2003 fire at the Mine 84 in Pennsylvania; the January 22, 2003 explosion at the McElroy mine shaft involving Central Cambria Drilling in West Virginia; and the February 13, 2003 fire at the Loveridge mine in West Virginia. Because there is no final MSHA accident report for Blue Diamond mine, McElroy mine, and Loveridge mine, MSHA has not drawn a conclusion as to the mine operator's emergency response in relation to this final rule. MSHA addresses the Quecreek accident in the section-by-section discussion of § 75.1501(d).
The Fairfax mine fire occurred on September 16, 2002, before promulgation of the ETS. In its August 20, 2003 accident investigation report of the Fairfax mine fire, MSHA concluded in part that, “Discovery of the fire, fire-fighting, and evacuation procedures were delayed because the Fire Detection System was disabled by an electrical short circuit problem, which prevented the system from sounding an audible fire alarm. The fire continued to intensify before it was discovered because the short circuit problem in the Fire Detection System was not rapidly evaluated and because the automatic Fire Suppression System was not properly installed.”
MSHA issued a final accident investigation report for the fire at Mine 84 on April 9, 2003. The accident occurred after the ETS was promulgated and the requirements of the ETS were in effect. The following gives a brief description of the Mine 84 accident. On January 6, 2003, a fire occurred in the longwall section conveyor belt entry. At about 8:27 a.m., the carbon monoxide monitoring system gave a warning indicating elevated concentrations of carbon monoxide along the beltline. The warning was investigated and dense smoke was encountered in the belt entry. Underground personnel were eventually evacuated from the mine except for those needed to conduct fire-fighting activities. Eventually mine rescue teams took over fire-fighting activities and then worked continuously until they were able to contain and extinguish the fire by January 27, 2003. MSHA issued a 104(d)(1) order for a violation of 30 CFR 75.1502(a). MSHA determined that the operator's approved program of instruction for firefighting equipment and evacuation procedures was not followed due to management's failure to immediately withdraw the 1-B longwall crew to a safe location outby the sensor activating the alarm.
Several commenters objected to the ETS. They questioned the foundation of the emergency temporary standard, objected that the comment period spanned a traditional holiday, perhaps discouraging commenters from commenting, and recommended that the standard be revoked.
The rationale for issuing the ETS was thoroughly discussed in the December 12, 2002
One commenter asked that MSHA determine the goal of the rule. The commenter asked whether it was to
Various comments were received recommending additional standards and requirements that are outside the scope of this rulemaking. These recommendations included the following: redesign self-contained self-rescuers; require new or separate secondary communication systems; require communications on all vehicles; redesign equipment batteries; improve roof control; require additional gas detectors; expand annual retraining to exceed eight hours; deploy atmospheric monitoring systems mine-wide; limit shift length; require dedicated transportation equipment; and provide continuous communications for anyone who might respond to an emergency. These recommendations are not incorporated into the final rule because they are outside the scope of this rulemaking.
One commenter also urged that the rulemaking be expanded to include underground metal and non-metal mines. Because this rulemaking deals with underground coal mine standards, the issue is beyond the scope of the rulemaking.
As a part of the ETS and proposed rule discussion, MSHA solicited comments on whether the rule should be broadened to address outbursts, massive roof falls, or other occurrences. Both affirmative and negative comments were received. Some comments indicated that coverage was already overly broad while others envisioned a wider scope of conditions that should result in evacuation. On balance, based on the rulemaking record, the Agency concludes that the conditions incorporated by the ETS and proposed rule were appropriate and should not be broadened at this time. Comments were considered, as well as the mine accident histories available to MSHA.
Section 75.1501 addresses mine emergency evacuations. Like the ETS and the proposed rule, paragraph (a) of the final rule requires that for each shift that miners work underground, there shall be in attendance a responsible person designated by the mine operator to take charge during mine emergencies involving a fire, explosion, or gas or water inundation.
Under the ETS and proposed rule, the responsible person was required to be in attendance at the mine but was not limited to an underground or surface location. The final rule adopts the proposed rule language. A number of commenters suggested that the responsible person should be required to remain on the surface. Another commenter suggested that the responsible person should be located underground. Some commenters suggested that the responsible person should receive continuous output information or data from any mine monitoring system. Another commenter maintained that two responsible persons should be required with one located on the surface and one underground.
Although it is possible that a number of persons at a mine could be qualified for designation as the responsible person, many mines have elected to designate the mine foreman as the responsible person. This is an appropriate designation because the mine foreman is often the person most knowledgeable about the mine and the one who determines where people will be traveling. In such cases, prohibiting the foreman from traveling underground could have a detrimental effect on mine safety, as noted by one commenter. Conversely, requiring the mine foreman to remain underground for the entire shift would prevent performance of essential functions that may be required on the surface. MSHA concludes that it is appropriate to allow the responsible person to be either on the surface or underground.
A number of commenters requested clarification on whether the phrase “for each shift that miners work underground” applies to shifts other than production shifts. The proposed rule required that a responsible person be designated by the mine operator, and be in attendance at the mine. This standard applies whenever there is at least one miner working underground. The final rule adopts this language from the proposed rule. As with the proposed rule, there is no exemption for idle, partially-staffed, maintenance, construction, or other non-producing shifts.
Paragraph (a) of final § 75.1501, like the proposed rule, also requires that the responsible person shall have current knowledge of the assigned location and expected movements of miners underground, the operation of the mine ventilation system, the location of the mine escapeways, the mine communications system, any mine monitoring system if used, and the mine emergency evacuation and firefighting program of instruction. This requirement in paragraph (a) is unchanged from the proposed rule. The purpose of this requirement is to ensure that during mine emergencies one responsible person responds by making informed decisions, and that mine evacuations are conducted rapidly, efficiently, and safely. The accidents of the recent past demonstrate the need for a responsible person to take charge during mine emergencies.
In taking charge during an emergency, the responsible person directs resources that may be required during the emergency and assures that all nonessential miners are evacuated safely. In addition, requiring that the responsible person be at the mine site during all shifts when miners are working underground assures that no delays result from off-site telephone calls.
A comment concerned the accessibility of the responsible person and the maximum length of time that the responsible person could be away from communications. Several commenters believed that continuous communication is needed, while another commenter stated that any short delay in communication is unacceptable. The final rule requires that the responsible person be able to initiate and conduct an immediate mine evacuation when necessary. This requirement would be met when the responsible person travels in working sections or within active areas of the mine because communication systems are readily available and could be used by the responsible person to carry out his or her duties. However, the need to travel in remote bleeder systems or worked-out areas where there is no communication could create a problem because the responsible person would be out of contact, unable to take charge during a mine emergency, and unable to initiate and conduct an immediate mine evacuation. In order to meet the requirements of this rule, the mine operator may need to assign another person to travel these areas, or redesignate another person who also meets the requirements of § 75.1501 as the responsible person. Miners must be informed of any such change in the identity of the responsible person.
The final rule, like the proposed rule, requires that the responsible person have current knowledge of the assigned location and expected movements of miners underground, the operation of the mine ventilation system, the location of the mine escapeways, the mine communications systems, any mine monitoring system if used, and the mine emergency evacuation and firefighting program of instruction. A
Requiring that the responsible person have current knowledge of the aforementioned elements assures that informed decisions are made during a mine emergency. For example, having knowledge of the work areas and the assigned locations of miners, and their expected movement during the work shift, allows miners working in remote locations (where electronic communication may not be readily available) to be notified of an evacuation as soon as possible. The responsible person will know the mine emergency evacuation and firefighting program procedures specific to the mine so that all miners working underground can be quickly located, warned of imminent danger, and evacuated efficiently and safely. Mine operators should adopt procedures specific to the mine to assure that the responsible person can quickly locate all underground miners by knowing the assigned locations and expected movements of miners underground.
Several commenters noted that it is impossible to track each miner in a large mine where examiners, material haulage persons, maintenance personnel, and belt attendants are moving continually. Other comments indicated that the location of every miner should be known at all times. The final rule maintains the proposed language that recognized it would be virtually impossible to track every miner during the shift. By using the phrase “expected movements of miners,” it is recognized that comprehensive tracking is impractical. Requiring miners to call-out their every movement would be a continuous tracking task and would unnecessarily occupy the telephone system that might be needed for safety or emergency purposes. It is reasonable, however, for the responsible person to know the assigned work locations and expected movements of miners. As maintenance personnel and material haulage personnel travel within the mine, they ordinarily will do so along main haulageways where others traveling the same haulageways can readily locate them. Similarly, although the responsible person may not know the precise location of examiners or belt attendants, knowing their assigned locations and expected movements will permit these persons to be located quickly.
Several comments were received recommending that the personal emergency device (PED) become a requirement of the final rule. A PED is a paging device that is part of a communication system that miners can wear. The system generally consists of a transmitter capable of sending communications through the rock strata that can be received by individual miners through their PEDs. This system is currently used at a number of U.S. underground coal mines and has also been deployed at mines in other countries. The PED system was used successfully in the mine evacuation process at the Willow Creek mine during the July 2000 explosion accident and during an accident in November 1998, also at Willow Creek. MSHA has not made the PED system a requirement of the final rule. MSHA believes that the PED system is generally effective and encourages its use. However, since technology is constantly changing, newer systems that may be as, or more, effective than the PED may be developed. One commenter noted that it should not be necessary to track miners equipped with a PED unit since they could be contacted regardless of their location. The Agency agrees that there is less of a burden to locate miners equipped with a PED, recognizing that they can generally be contacted. However, the responsible person must be aware of their assigned work locations and expected movements during the shift as well to assure all miners can be evacuated in an emergency.
In addition, the requirement in the proposed rule that the responsible person must have “current knowledge” about various mining systems in use at the mine resulted in a number of comments. Several commenters indicated that it would be impossible for any miner to have comprehensive knowledge of each ventilation control, precise telephone locations, and other precise details. A few commenters recommended substituting the term “general knowledge” for “current knowledge.”
The final rule retains the requirement for “current knowledge.” “Current knowledge” is intended to mean that the responsible person have up-to-date information regarding revisions to the escapeway routes, significant ventilation changes such as reversing air directions, adding shafts, and establishing new air splits, and other significant changes that would be important during an emergency. An extraordinary level of knowledge is not intended. A typical mine would have a number of miners able to meet the requirement perhaps including the mine foreman, assistant mine foremen, some examiners, and some section foremen. Others, such as safety department personnel, atmospheric monitoring system operators, or miners who regularly travel throughout the mine and are familiar with the approved plans, may also meet this requirement. However, clerical personnel or property guards ordinarily will not meet the requirement.
One commenter suggested that the responsible person should be required to travel underground on a regular basis in order to have “current knowledge.” MSHA has not included a minimal time for required underground travel. However, MSHA expects that some underground travel will normally occur for those miners meeting the requirements for a responsible person. An exception might include an experienced mine foreman who is temporarily working on the surface due to a recent injury and also has requisite knowledge of the current underground mine environment and operations defined under § 75.1501.
Some commenters believed there was an inherent conflict between the responsible person required by proposed § 75.1501 and the responsible persons required by existing standards § 75.310,
Some commenters were unsure whether the standard would apply to mine rescue teams and mine rescue and recovery efforts, and how the standard would affect decisions of upper mine management during emergency operations. The standard is intended to facilitate the immediate evacuation of the miners at the onset of fire, explosion, and gas or water inundation mine emergencies which present an imminent danger to miners, and to initiate a response when a response is
Paragraph (b) of § 75.1501 of the final rule requires that the responsible person initiate and conduct an immediate mine evacuation when there is a mine emergency that presents an imminent danger to miners due to fire, explosion, or gas or water inundation. The rule also requires that only properly trained and equipped persons essential to respond to the mine emergency may remain underground. This paragraph is unchanged from the proposed rule and ETS.
Several comments were received questioning whether a mine-wide evacuation is always required due to any occurrence of fire, explosion, or water or gas inundation. MSHA's final rule concludes that evacuation is required for mine emergencies that present an imminent danger to miners due to fire, explosion, or gas or water inundation. MSHA has concluded that miners can be exposed to serious danger when they remain underground or improperly re-enter affected mine areas during mine emergencies that present an imminent danger due to fire, explosion, gas or water inundation. However, not every imminent danger results in a mine-wide evacuation under this rule. Some commenters urged that the rule be reworded, believing that any underground imminent danger would trigger a full mine-wide evacuation. MSHA does not agree. An imminent danger that affects a limited area, such as a section, may result in withdrawal from the affected area, but would not necessarily be a mine emergency requiring mine-wide evacuation.
Several commenters suggested that a definition of imminent danger should be included in the rule. Section 3(j) of the Mine Act already defines an imminent danger, making further definitions unnecessary. The concept of imminent danger has existed since 1969 and is well understood by mine operators, miners, and others in the mining community. The term “imminent danger” is defined in the Mine Act, section 3(j), as “the existence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.” This definition is well known and provides readily understandable criteria.
MSHA agrees with the commenters who stated that not every mine fire, explosion, or gas or water inundation hazard may result in a mine emergency requiring a mine-wide evacuation. For example, unplanned mine fires not extinguished within 30 minutes of discovery are reportable to MSHA under 30 CFR part 50. Such fires may not present an imminent danger to miners and, therefore, may not constitute a mine emergency under this final rule. It is when fire, explosion, or gas or water inundations present an imminent danger to miners that MSHA expects that an immediate mine evacuation be initiated. For example, a gas or water inundation of unknown potential, or an explosion that raises the question of unknown damage to critical ventilation controls or interrupted ventilation, should result in a mine-wide evacuation. However, a small-scale fire at an electrical connection, while it may be a local emergency, may not immediately be a mine emergency that presents an imminent danger to all miners underground.
One commenter questioned whether accumulations of methane at elevated concentrations would be considered a gas inundation such that a mine-wide evacuation would be required. An accumulation of methane in a working place, such as the face, or the conveyor belt haulageway, is not a gas inundation. In general, an accumulation of methane results from inadequate ventilation or airflow. A gas inundation can occur even when there is adequate ventilation or airflow and is not limited to only methane gas. Current standards, specified in § 75.323,
One commenter questioned whether an evacuation could ever be interrupted once started. In the case where an evacuation has commenced due to a false alarm, or the emergency comes under control very quickly, the responsible person could interrupt the evacuation.
Several commenters believed that the ETS fosters an atmosphere of “every man for himself” and that chaotic unorganized evacuations will result. Other commenters believed that the rule encourages evacuation as the first reaction to a problem. To the contrary, the rule promotes organized evacuations and controlled responses. By requiring a responsible person to take charge and by improving plans and training, MSHA believes that timely and orderly evacuations will result.
Several commenters suggested that the word “conduct” found in proposed § 75.1501(b) should be deleted from the phrase “the responsible person shall initiate and conduct an immediate mine evacuation. * * *” These commenters suggested that the responsible person should only be required to initiate the evacuation. Some commenters believed that the responsible person was required to make all communication contacts and perform all other duties without any assistance. The responsible person can, of course, obtain whatever assistance is needed to contact and evacuate miners safely and quickly. The final rule retains the phrase “initiate and conduct.” “Conduct” is used to assure that the responsible person remains in control during the evacuation and remains responsible for assuring that the evacuation actually occurs. “Conduct” is not used to mean or imply that the responsible person is prohibited from obtaining assistance during the emergency. The responsible person should utilize any resources needed for evacuation and should obtain assistance as appropriate.
Other commenters believed that the rule prohibits any involvement of upper mine management and prohibits contact with off-site management. The final rule, like the proposed rule, is constructed to assure that an evacuation order by the responsible person would not be usurped and to clarify that concurrence or approval by off-site management is not necessary, as it could result in a needless delay. This does not, however, prohibit communication with upper management located on or off-site. Neither does the rule prohibit upper management from organizing or deploying a mine rescue team for recovery efforts. As discussed elsewhere in this preamble, the final rule is intended to address evacuation of miners where a mine emergency exists that presents an imminent danger, and an initial response—if a response is warranted. However, the rule does not
Numerous comments were received regarding the phrase contained in proposed § 75.1501(b), “properly trained and equipped.” This phrase is retained in the final rule. Stated in full, the final paragraph requires that “[o]nly properly trained and equipped persons essential to respond to the mine emergency may remain underground.” Some commenters thought the phrase would limit any response to mine rescue teams. Other commenters stated that waiting for mine rescue teams would allow even small fires to propagate, creating larger, unnecessary hazards. The reason for this requirement is derived from the circumstances surrounding the Jim Walter Resources No. 5 mine accident where a party of miners was believed to have entered 4 Section, where the air quality was undetermined, without gas detectors. The requirement is intended to prevent similar occurrences.
The final rule does not limit responses to mine rescue teams and does not prohibit mine emergency responses. The final rule does, however, require that persons responding to mine emergencies be equipped with appropriate equipment and trained in its use. Several commenters requested that a definition for “properly trained and equipped” be included in the rule. MSHA believes that a definition is not necessary, and could hamper flexibility on the part of mine operators to respond to rapidly changing or different emergency situations. While it is impractical to list every possible emergency scenario, the equipment required should be apparent to those directing or engaged in any response, dependent on the nature of the emergency and the particular conditions. As an example, where miners are entering an area where ventilation controls have been destroyed or the air quality is unknown, responders should be equipped with gas detectors and should know how to operate the detectors. Miners responding to fight a fire should have gas detectors as well as firefighting equipment—and should know how to use the equipment. Otherwise, the responders could be unnecessarily exposed to hazards and the equipment could have limited effect.
One commenter suggested that each miner participating in a response should be provided with equipment—such as a gas detector. Other comments suggested a clarification that only one person in a response party, probably the leader, should be required to have the needed equipment. The Agency concludes that, in the gas detector example, sufficient gas detectors should be provided so that the group can adequately monitor the atmosphere to which they are exposed. The size of the group and the extent to which they are close together or dispersed will affect the number of gas detectors needed. In general, the quantity of equipment must be at least sufficient to protect miners from the reasonably anticipated hazards.
Section 75.1501(c) of the final rule requires that the mine operator instruct all miners about the identity of the responsible person designated by the operator for their workshift. The mine operator shall inform miners before the start of their workshift if the identity of the responsible person changes. The ETS also included an implementation date that has been deleted from this final rule since it is no longer necessary. Except for the elimination of the implementation date, this paragraph of the final rule remains unchanged from the ETS and the proposed rule.
A number of comments were submitted in response to proposed paragraph (c). A typical comment was that the responsible person should be identified by title—rather than by name. It is acceptable to develop plans and procedures where the responsible person is identified by title, so long as miners know the identity of the responsible person. A mechanism must be in place to inform the miners of the identity of the responsible person for their workshift. Should an emergency occur, a miner must be able to page a specific person rather than paging for a mine foreman or some other title.
Miners can be informed of the identity of the responsible person for their workshift in a number of ways. A verbal announcement can be made before traveling underground, a prominent chalkboard at the check-in/check-out board could indicate the name of the responsible person, or other systems could be used. One commenter believed that if MSHA asked a miner to name the responsible person, an incorrect response would result in a citation. The comment indicated that the memory of a miner is outside the control of the mine operator. MSHA does not anticipate using such a quiz for citation purposes. When it becomes apparent that several miners are unaware of who is designated the responsible person or how the notification system works, the system and its effectiveness should be reviewed. The rule recognizes that in many cases, after the responsible person is designated and the miners informed, the responsible person's identity might not change for extended periods of time.
Several commenters asked how miners would be informed of any unexpected redesignation of the responsible person during the shift. To meet the requirement and objective of the rule, miners must be informed of any unexpected change in the identity of the responsible person. One way to inform the miners of the change would be to contact the underground supervisors, instructing them to inform their crews. It is understood that every miner cannot be instantly informed and that miners traveling or working in remote locations may not be immediately informed. However, reasonable efforts must be made for supervisors to inform underground miners or their work crews when an unexpected change in the responsible person occurs during the shift.
Paragraph (d) of final § 75.1501 provides that nothing in this section shall be construed to restrict the ability of other persons in the mine, in addition to the responsible person, to warn of an imminent danger that warrants evacuation. This paragraph is unchanged from the ETS and the proposed rule. This provision recognizes that there will be mine emergencies which present an imminent danger to miners due to fire, explosion, or gas or water inundation warranting a warning by someone other than the responsible person under § 75.1501(a). For example, at the Quecreek Mine inundation accident that occurred July 24, 2002, miners from the affected section rapidly warned miners in the other working section of a water inundation, enabling the miners in the other working section to quickly escape the mine unharmed. These actions are consistent with the approach of final paragraph (d) of § 75.1501 that recognizes that any person may warn others of an imminent danger which warrants evacuation. Had any delays occurred at Quecreek in warning the miners, tragic results might have ensued. This paragraph clarifies that obtaining approval or concurrence from the responsible person is not required when circumstances warrant.
A commenter suggested MSHA incorporate the Occupational Safety and Health Administration's (OSHA's) 29 CFR 1920.120 titled
Final § 75.1502,
Under the ETS and proposed rule, operators were to immediately revise existing firefighting and evacuation plans, retrain miners, and submit the revised plan to MSHA for review and approval. This process was a departure from the normal plan approval process whereby MSHA approval is required prior to implementation. The ETS implementation dates have passed, and the dates listed in the ETS are deleted from the final rule. Plans previously revised to comply with the ETS should need no further revision to comply with the final rule.
Final paragraph § 75.1502(a) explicitly requires underground coal mine operators to “adopt and follow” an approved mine emergency evacuation and firefighting program of instruction. The addition of the phrase “and follow” is a change from the ETS and the proposed rule, which stated that underground coal mine operators must “adopt” a program of instruction. Despite the lack of the phrase “and follow” in the ETS and the proposed rule, it has been MSHA's intent that mine operators follow their approved plans in the event of a mine emergency. The concurrent promulgation of § 75.1501 and § 75.1502 at the proposed rule stage demonstrates MSHA's intent that the standards function in unison. For example, under § 75.1501, the responsible person is required to initiate and conduct an immediate mine evacuation in the event that a mine emergency due to fire, explosion, or gas or water inundation presents an imminent danger to miners. The mine emergency evacuation and firefighting program of instruction would serve little purpose if the responsible person did not initiate and conduct the mine evacuation in accordance with the program of instruction. There would be little, if any, benefit to miners' safety if the responsible person were to initiate and conduct an uncoordinated, disorganized evacuation. In fact, no program of instruction would be necessary for such an evacuation. Although § 75.1501 and § 75.1502 were always intended to operate in an integrated manner, the agency is aware that the intent is better expressed by use of the phrase “adopt and follow.” The explicit requirement that an operator “follow” the approved program of instruction once it is adopted is reflected in final § 75.1502(a). This requirement is consistent with MSHA's practice under existing § 75.370,
As with other mine plans, subsequent changes or revisions may not be implemented at the mine until approved by the District Manager of the Coal Mine Safety and Health District in which the mine is located and the affected miners have been instructed in the revised provisions.
Paragraph (a) of § 75.1502 of the final rule adopts the language of the ETS and proposed rule with only minor changes that clarify the rule's intent. Under paragraph (a), MSHA retains the requirement of the ETS and the proposed rule that the existing program of instruction include the proper evacuation procedures in the event of a mine emergency. In addition, final paragraph (a) of § 75.1502 retains the requirements of former § 75.1101-23(a), the ETS, and the proposed rule, that the program of instruction include procedures to be followed regarding the location and use of firefighting equipment, location of escapeways, exits, and routes of travel to the surface.
MSHA expects that the plan must, at a minimum, cover the types of mine emergencies presenting an imminent danger to miners due to fire, explosion, or gas or water inundation. Mine operators may choose to cover in their plan other types of mine emergencies when evacuations would be appropriate as well.
A few commenters stated their belief that the purpose of the rule was to ensure that MSHA could second-guess decisions made during emergencies and issue citations. Typically, these commenters discussed the 2000 Willow Creek explosions (previously discussed in this preamble) and the January 21, 1986 fire at Jim Walter Resources No. 3 mine. At the Jim Walter Resources No. 3 mine, a fire occurred along the No. 1 longwall section face. The fire was apparently started by a cutting torch being used to dismantle the longwall conveyor. Two miners were injured as a result of the fire. Efforts to control the fire were unsuccessful and all miners were withdrawn from the mine. On January 22, 1986, it was decided to partially seal the mine. The seals were completed on February 16, 1986. In both cases, miners remained underground in hazardous conditions in an effort to control mine fires, despite the hazard of a major explosion. MSHA concluded that the § 75.1101-23 plan was not violated at either Willow Creek or Jim Walter No. 3. Similarly, under the final rule, MSHA will assess the overall evacuation response and actions taken to protect the safety of the miners, recognizing that an undesirable outcome is not necessarily a violation of the provisions of the mine emergency and firefighting program of instruction. MSHA continues to believe that increased awareness of responsibility for mine evacuations, improved plans and training will help eliminate fatal and non-fatal injuries during mine emergencies.
Final paragraphs (1) through (4) of paragraph (a), specify general topics to be developed and included in the program of instruction or plan. These include: (1) Mine emergency evacuation for mine emergencies presenting an imminent danger to miners due to fire, explosion, or gas or water inundation; (2) Evacuation of all miners not required for a mine emergency response; (3) Rapid assembly and transportation of necessary miners, fire suppression equipment, and rescue apparatus to the scene of the mine emergency; and, (4) Operation of the fire suppression equipment available in the mine. These paragraphs are unchanged from the existing ETS and proposed rule. MSHA will publish, and make available at its Web site, a model plan as an example. Mine operators should develop plans that are suitable to the particular conditions existing at their mine. For example, a mine not employing an atmospheric monitoring system would not discuss how an AMS would be integrated into the plan. Similarly, a mine that has deployed a Personal Emergency Device (PED) system should include a discussion of how the system is integrated into its procedures for notification and evacuation.
As required under final paragraph (a)(1), the plan requires that all miners on all shifts be acquainted with procedures for mine emergency
One commenter recommended that the word “endanger” in proposed paragraph (a)(1) of § 75.1502 be replaced with wording consistent with § 75.1501. MSHA agrees that ambiguity would be reduced by the use of consistent wording, and has replaced the word with the phrase “present an imminent danger to miners” in the final rule.
Paragraph (a)(2) requires that the plan explicitly instruct all miners not required for a mine emergency response to evacuate promptly. This paragraph is unchanged from the ETS and proposed rule. The plan should discuss the specific processes to be used at the mine to notify all miners that an evacuation is necessary. If a single communication system is used, the plan should detail procedures to be followed in the event of a communication system failure. Alternatively, if a secondary communication system is used, the plan should identify the system and state how the system would be used in an emergency evacuation. If the mine has deployed a PED system to all or certain miners, the plan should discuss how information would be distributed to ensure that all miners are notified of the need to evacuate. The plan should specify and discuss assembly areas on sections and other work locations along with preparations and assignments to be performed. For example, the plan could discuss how the section mechanic might be assigned to deenergize power when preparing to evacuate. The plan should discuss how local firefighting efforts integrate into the plan.
Several commenters noted that a timely evacuation would not be possible or practicable at a large mine unless transportation equipment was continuously maintained at working sections while miners were working. The approved mine emergency and firefighting plan should specify how transportation equipment is to be deployed and distributed within the mine. Plans should specify that transportation equipment be maintained on working sections when miners are working, and the conditions under which sufficient transportation equipment will not be maintained at working sections. One commenter stated that requiring transportation to be maintained at the working section could prevent evacuation of a single injured miner in need of medical attention, since the mantrip would be required to remain at the section. The Agency agrees that there could be instances when the transportation vehicle would not be available. If transportation is not available at the working section, contingencies should be described in the mine emergency and firefighting plan. The final rule allows mine operators sufficient flexibility to develop these aspects of the plan according to the needs of each individual mine.
Final paragraph (a)(3) is unchanged from the ETS and proposed rule. It requires that the plan address the rapid assembly and transportation of the necessary miners, fire suppression equipment, and rescue apparatus to the scene of the mine emergency. The plan should discuss how persons responding to an emergency will be transported. It should also discuss the availability and location of fire suppression equipment and rescue apparatus that will be needed at the scene of the emergency. MSHA received a comment stating that retreating miners, especially in a track mine, could hinder the responsible person's efforts to direct emergency supplies or transportation to the site of the mine emergency. Also a commenter stated that the rule does not address having some means of transportation to respond to a mine emergency always at hand. These issues must be considered during development of a plan to assure that miners can be efficiently evacuated, even while a response is implemented, if a response is appropriate.
Another commenter wanted clarification on whether equipment assembly must be included during drills and, considering that most mines are covered by off-site mine rescue teams, whether these teams would need to be activated as a part of a training drill. MSHA responds by stating that existing MSHA-approved plans already discussed, in detail, the requirements for use and location of firefighting equipment. MSHA has not issued a detailed policy on the inclusion of equipment assembly or contacting off-site rescue teams in mine emergency evacuation drills. However, during the drills it would be appropriate for mine employees to review procedures for contacting off-site rescue teams and for emergency response personnel to make sure phone numbers are in working order. Locating and simulating equipment assembly would also be appropriate.
Paragraph (a)(4) of the final rule requires a specific plan designed to acquaint miners on all shifts with procedures for operating the fire suppression equipment available in the mine. The plan should indicate how storage areas will be marked and how equipment will be maintained in operational condition. This requirement assumes that outby miners would also be fully acquainted with emergency procedures to be followed and equipment to be used. This paragraph was adopted from previous § 75.1101-23 and remains unchanged from the ETS and proposed rule. It retains the same requirements for procedures for the operation of fire suppression equipment. No comments were received on this paragraph.
Final paragraph § 75.1502(b), including paragraphs (b)(1) through (b)(3), sets forth requirements for each operator of an underground coal mine to ensure that certain specified miners are proficient in the use of, and know the location of, fire suppression equipment. Each of these paragraphs was derived from, and retain the same requirements as, previous § 75.1101-23(b), the ETS, and the proposed rule.
Final paragraph (b)(1) requires the mine operator to ensure that at least two miners in each working section on each production shift are proficient in the use of all fire suppression equipment available on such working section, and know the location of such fire suppression equipment.
One commenter requested that paragraph (b)(1) require every miner to be proficient in the use of fire suppression equipment and know the location of firefighting equipment. MSHA believes that final (b)(1) is appropriate because a working section is a relatively limited area and therefore two miners knowing where to locate the equipment, and being proficient in the use of the equipment, would be sufficient. In addition, the mine emergency evacuation program of instruction will require other miners to be assigned to duties such as de-energizing electrical power to the section, ensuring transportation is available should evacuation be necessary, locating water hoses, gathering fire extinguishers and rock dust, and maintaining telephone contact with surface personnel. This requirement recognizes that there will be a coordinated response among miners performing various tasks, including the two miners proficient in using the fire suppression equipment.
Final paragraph (b)(2) requires the mine operator to ensure that each operator of attended equipment specified in § 75.1107-1(c)(1), and each miner assigned to perform job duties at the job site in the direct line of sight of attended equipment as described in § 75.1107-1(c)(2), is proficient in the use of fire suppression devices installed on such attended equipment. This requirement recognizes that the class of equipment referenced in this paragraph has been determined to warrant fire suppression devices and attendance. As reflected in final (b)(2), if attended equipment catches fire, all miners operating such equipment and performing job duties in the direct line of sight of such equipment will have the requisite knowledge to suppress or extinguish the fire. This requirement is unchanged from the proposed rule and ETS.
Final paragraph (b)(3) requires that the shift foreman and at least one miner for every five miners working underground on a maintenance shift are proficient in the use of fire suppression equipment available in the mine, and know the location of such fire suppression equipment. The requirement found in paragraph (b)(3) recognizes that a mine emergency due to fire may also occur on a maintenance shift where the locations of the miners may be more dispersed. This situation would differ from a production shift where there is generally a set number of miners near the face area. Therefore, rather than requiring the miners to be proficient within a geographical area of the mine, this provision focuses on ensuring that an adequate number of miners know the location of firefighting equipment and are proficient in using the fire suppression equipment.
One commenter requested that paragraph (b)(3) require every miner to be proficient in the use of fire suppression equipment and know the location of firefighting equipment. MSHA has determined that miners will be adequately protected by the requirement that the shift foreman and at least one miner for every five miners working underground on a maintenance shift be proficient in the use of fire suppression equipment. While the shift foreman will move throughout the mine, requiring at least one miner for every five to be proficient in the use of fire suppression equipment, will approximate the requirement in (b)(1). As in final paragraph (b)(1), MSHA recognizes that the mine emergency evacuation program of instruction will require other miners to be assigned to various other duties necessary to extinguish the fire. This requirement recognizes that there will be a coordinated response among miners performing various tasks, including the shift foreman and one miner for every five proficient in using the fire suppression equipment. This requirement is unchanged from the proposed rule and ETS.
Paragraph (c) requires each operator of an underground coal mine to require all miners to participate in mine emergency evacuation drills, which shall be held at periods of time so as to ensure that all miners participate in such drills at intervals of not more than 90 days. This paragraph was derived from previous § 75.1101-23, and the final rule is unchanged from the ETS and the proposed rule. The final rule differs from previous § 75.1101-23 to the extent that drills conducted in accordance with the final rule will simulate actions required in mine emergency evacuations, whereas previous § 75.1101-23 only required a simulation of actions required in the event of emergencies due to fire. One commenter suggested that a grace period be provided to accommodate for any miners who may have been absent on the day of the drill. This comment was not adopted in the final rule because MSHA believes that the performance of drills every 90 days is essential to maintain miners' readiness to act, and familiarity with measures to be taken in the event of a mine emergency. Mine operators may exercise flexibility in meeting the requirement of this provision. For example, a mine operator may wish to conduct a drill only when he or she is certain that there is 100 per cent section attendance on a given shift, so long as all miners participate at intervals not exceeding 90 days.
Final paragraph (c)(1) requires that the mine operator certify by signature and date that the mine emergency evacuation drills were held in accordance with the requirements of this section. This paragraph is derived from former § 75.1101-23. Certifications shall be kept at the mine for one year and made available on request to an authorized representative of the Secretary and to the representative of the miners. One comment noted that, unlike most other recordkeeping requirements, this paragraph did not expressly provide the miners and the representatives of miners an opportunity to inspect the record. MSHA agrees that the record should be made available to the representatives of the miners. Accordingly, the final rule is revised to include a provision that requires the records be available on request to the representatives of miners. The final rule adds a new requirement to keep the evacuation drill certifications at the mine for one year. This language is consistent with other recordkeeping requirements in the standards and ensures that records are retained for a sufficient amount of time to verify that the mine emergency evacuation drills were properly conducted in accordance with § 75.1501(c).
Paragraph (c)(2) requires that for purposes of paragraph (c), a mine emergency evacuation drill must consist of a simulation of the actions required by the approved mine emergency evacuation and firefighting plan described in paragraph (a)(1) through (4) of this section. The proposed rule contained a printing error that was corrected by the
Several comments were received on proposed paragraph (c)(2). Commenters requested guidance on the content of mine emergency evacuation drills. Requirements for mine emergency evacuation drills defined in § 75.1502(a)(1), as well as paragraphs (a)(2), (a)(3), and (a)(4), are explicitly referenced in this section.
Several commenters asked for clarification of what would constitute a “simulation.” A “simulation” means a mock fire or emergency that results in firefighting actions and mine evacuation. Some mine operators currently conduct simulations using artificial smoke to imitate a fire at various locations. Other operators believe that a discussion during safety meetings is sufficient to meet this requirement, noting that the contents of the MSHA Program Policy Manual lists “group discussions” as one type of training for a fire drill. Although group discussions are listed in the manual as one possible element of a drill, discussions during safety meetings alone do not satisfy the requirement to conduct a drill consisting of a simulation of the actions required by the mine emergency evacuation plan. Demonstrations, discussions, and task-oriented training may be included as part of a comprehensive drill.
Several commenters suggested that guidance was needed on the contents of mine emergency evacuation drills. There are two aspects to the drills: firefighting and evacuation. Both should
MSHA agrees with a comment submitted that the outcomes of mine emergency evacuation drills should be reviewed by mine personnel in order to improve the emergency evacuation plan. This is a common sense approach that MSHA believes mine operators will follow and consequently, MSHA has not included it in the rule.
Several commenters believed that drills required by paragraph (c)(2) did not apply to all miners, or to all shifts. This is not the case. All miners on all shifts are to participate in the required drills at not more than 90-day intervals. There is no exemption for idle, partially-staffed, maintenance, construction, or other non-producing shifts. A similar comment questioned whether the evacuation plan and drills applied to contractors. There is no exemption for contractors.
Another commenter believed that an evacuation resulting from a false alarm could not be considered a required drill. Drills can be conducted at any time provided drills occur at intervals of not more than 90 days. Accordingly, an unplanned drill (for example, due to a false alarm) meeting the elements discussed in § 75.1502(a)(1) through (a)(4) above can be accepted as a required drill. One commenter suggested that a drill should be acceptable if performed anytime during established 90-day cycle periods. This approach has not been adopted because under this approach six months could elapse between drills, and this length of time would undermine the goal of maintaining appropriate familiarity with firefighting and evacuation procedures. The final rule requires drills at intervals of not more than 90 days, as did the ETS and the proposed rule.
Some commenters stated that § 75.383,
Another commenter requested that MSHA reference ANSI Z490.1 Criteria for Accepted Practices in Safety, Health, and Environmental Training. MSHA has not included this reference in the final rule. Training issues are appropriately addressed in the rule in existing part 48 training requirements. Part 48 is the appropriate and clearly understood mechanism for training miners in response to mine emergencies.
MSHA is revising its existing training regulation in 30 CFR part 48.8,
Subpart A of 30 CFR part 48 prescribes requirements for submitting and obtaining MSHA approval of operator-administered programs for training and retraining underground miners. Each mine must have an approved training program for training new miners and newly-employed experienced miners, as well as training miners for new tasks and providing annual refresher training.
The existing training requirements under § 48.5,
As with the proposed rule, all training required by the final rule will be delivered by an MSHA-approved instructor as required by part 48. The required training covering emergency evacuations falls under part 48. Also, documentation that training has taken place shall be kept at the mine and made available on request to an authorized representative of the Secretary and to the representative of the miners.
This final rule does not reduce the safety protection afforded miners under former § 75.1101-23. In fact, miner safety is enhanced because the final rule: provides for training all miners in mine emergencies which present an imminent danger to miners from explosions and gas or water inundations, not just mine fires; and requires miners to receive annual refresher training. This provision eliminates duplicate provisions and consolidates the training requirements under part 48. This modification of the training requirements under former § 75.1101-23 does not represent a reduction in safety to miners because the training requirements of § 75.1101-23 are incorporated in new § 75.1502 and the revised and existing sections of part 48.
We have determined that the requirements of the final rule are both technologically and economically feasible.
MSHA believes that the rule would be technologically feasible for the mining industry. An agency must show that modern technology has at least conceived some industrial strategies or devices that are likely to be capable of meeting the standard, and which industry is generally capable of adopting.
This rule addresses revisions of mine emergency evacuation plans and associated training. This rule neither requires underground coal mines to procure any additional equipment nor use any new technology. This is not a technology-forcing standard and does not involve activities on the frontiers of science. We conclude, therefore, that this rule is technologically feasible.
Underground coal mines will incur costs of approximately $0.23 million yearly to comply with this rule. That these compliance costs represent well under 1 percent (about 0.003 percent) of annual underground coal mine revenue is sufficient evidence, MSHA believes, to conclude that this rule is economically feasible for underground coal mines.
Based on its analysis, MSHA has determined that this rule would not have a significant economic impact on a substantial number of small entities. MSHA has so certified this finding to the Small Business Administration. The factual basis for this certification is discussed in chapter V of the Regulatory Economic Analysis (REA).
This final rule has no new or revised collections of information as defined by the Paperwork Reduction Act of 1995 (P.L. 104-13). Section 75.1101-23 was redesignated as § 75.1502. Section 75.1101-23 was approved under OMB control number 1210-0054, with an expiration date of September 30, 2003. The existing paperwork requirements including § 75.1502 are approved under OMB control number 1219-0137, with an expiration date of June 30, 2006.
During the first year the final rule is in effect, and every year thereafter, the rule will impose 354 burden hours, and related burden hour costs of $19,456.
Comments were solicited in the proposed rule for the following issues:
1. Evaluate whether the collection of information is necessary for the proper performance of the functions of MSHA, including whether the information would have practical utility;
2. Evaluate the accuracy of our estimate of the burden of the 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 collection of information on respondents, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
In response to the solicitation, several commenters requested that documents be made available to the miner's representatives. This issue is addressed in the section by section discussion.
Our paperwork submission summarized above is explained in detail in the REA that accompanies the rule. The REA includes the estimated costs and assumptions for the paperwork requirement related to the rule. A copy of the REA is available on our Web site at
The final rule contains all costs from the effective date. These economic statistics have been revised, as compared with the ETS and proposed rules, to reflect this change. This change excludes costs during the period between the effective date of the ETS and the effective date of this final rule. Also these statistics have been revised to reflect 2001 data and any new assumptions.
Executive Order 12866 requires that regulatory agencies assess both the costs and benefits of intended standards and regulations. We have fulfilled this requirement for this rule and determined that it would not have an annual effect of $100 million or more on the economy. Therefore, we do not consider this rule to be economically significant under section 3(f)(1) of Executive Order 12866.
In the REA, MSHA has developed estimates of the safety benefits of this rule, which ensures that operators and miners have a clear understanding of actions and procedures to be followed in the event of a mine emergency. MSHA has concluded that the two fatalities at the Willow Creek Mine and nine of the 13 fatalities at the Jim Walter No. 5 Mine might have been prevented had this rule been in place. The Agency has reviewed its coal accident investigation database and has not identified any other fatalities during the past 10 years that might have been prevented by this rule. In summary, based on its experience over the past ten years, MSHA believes it is reasonable to estimate that this rule could prevent 11 miners' lives from being lost every ten years, or an average benefit of the rule of 1.1 miners' lives saved every year. The actual number of mine fatalities prevented could be much larger.
MSHA has determined that, for purposes of section 202 of the Unfunded Mandates Reform Act of 1995, this rule does not include any Federal mandate that may result in increased expenditures by State, local, or tribal governments in the aggregate of more than $100 million, or increased expenditures by the private sector of more than $100 million. Moreover, the Agency has determined that for purposes of section 203 of that Act, this rule would not significantly or uniquely affect small governments.
The Unfunded Mandates Reform Act was enacted in 1995. While much of the Act is designed to assist the Congress in determining whether its actions will impose costly new mandates on State, local, and tribal governments, the Act also includes requirements to assist Federal Agencies to make this same determination with respect to regulatory actions.
Based on the analysis in this REA, compliance with this rule by coal mine operators and contractors covered within this rulemaking would result in a compliance cost of approximately $0.23 million per year. Accordingly, there is no need for further analysis under section 202 of the Unfunded Mandates Reform Act.
We have concluded that small governmental entities would not be significantly or uniquely impacted by this rule. This rule would cover 664 underground coal mining operations.
We have reviewed this rule in accordance with Executive Order 13132 regarding federalism and have determined that it does not have “federalism implications.” This rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
In accordance with Executive Order 13045, we have evaluated the environmental health and safety effects of this rule on children. The Agency has determined that this rule would have no adverse effect on children.
We certify that this rule would not impose substantial direct compliance cost on Indian tribal governments.
This rule is not subject to Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, because it does not involve implementation of a policy with takings implications.
We have reviewed Executive Order 12988 and determined that this rule would not unduly burden the Federal court system. We drafted the rule to provide a clear legal standard for affected conduct.
In accordance with Executive Order 13211, we have reviewed the rule for its energy impacts. The rule would have no effect on the distribution or use of energy. The only impacts of the rule on the supply of energy would be through its effect on the price of coal.
The estimated yearly cost of the rule for the coal mining industry would be about $0.23 million.
Accordingly, we have determined that the rule would have no significant adverse effect on the supply, distribution, or use of energy.
In accordance with Executive Order 13272, MSHA has thoroughly reviewed the rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. As discussed in chapter V of the REA, MSHA has determined that the rule would not have a significant economic impact on a substantial number of small entities.
Education, Mine safety and health, Reporting and recordkeeping requirements.
Coal mines, Underground coal mining, Mine safety and health, Emergency medical services, Fire prevention, and recordkeeping requirements.
30 U.S.C. 811, 825.
(b) * * *
(4)
30 U.S.C. 811.
(a) For each shift that miners work underground, there shall be in attendance a responsible person designated by the mine operator to take charge during mine emergencies involving a fire, explosion or gas or water inundations. The responsible person shall have current knowledge of the assigned location and expected movements of miners underground, the operation of the mine ventilation system, the location of the mine escapeways, the mine communications system, any mine monitoring system if used, and the mine emergency evacuation and firefighting program of instruction.
(b) The responsible person shall initiate and conduct an immediate mine evacuation when there is a mine emergency which presents an imminent danger to miners due to fire or explosion or gas or water inundation. Only properly trained and equipped persons essential to respond to the mine emergency may remain underground.
(c) The mine operator shall instruct all miners of the identity of the responsible person designated by the operator for their workshift. The mine operator shall instruct miners of any change in the identity of the responsible person before the start of their workshift.
(d) Nothing in this section shall be construed to restrict the ability of other persons in the mine to warn of an imminent danger which warrants evacuation.
(a) Each operator of an underground coal mine shall adopt and follow a mine emergency evacuation and firefighting program that instructs all miners in the proper evacuation procedures they must follow if a mine emergency occurs, location and use of firefighting equipment, and location of escapeways, exits, and routes of travel to the surface. Such program of instruction shall be approved by the District Manager of the Coal Mine Safety and Health district in which the mine is located. Before implementing any approved revision to the program of instruction, the operator shall instruct persons affected by the revision in any new provisions. The approved program of instruction shall include a specific plan designed to acquaint miners on all shifts with procedures for:
(1) Mine emergency evacuation for mine emergencies that present an imminent danger to miners due to fire, explosion, or gas or water inundation;
(2) Evacuation of all miners not required for a mine emergency response;
(3) Rapid assembly and transportation of necessary miners, fire suppression equipment, and rescue apparatus to the scene of the mine emergency; and,
(4) Operation of the fire suppression equipment available in the mine.
(b) In addition to the approved program of instruction required by paragraph (a) of this section, each operator of an underground coal mine shall ensure that:
(1) At least two miners in each working section on each production shift are proficient in the use of all fire suppression equipment available on such working section, and know the location of such fire suppression equipment;
(2) Each operator of attended equipment specified in § 75.1107-1(c)(1), and each miner assigned to perform job duties at the job site in the direct line of sight of attended equipment as described in § 75.1107-1(c)(2), is proficient in the use of fire suppression devices installed on such attended equipment; and,
(3) The shift foreman and at least one miner for every five miners working underground on a maintenance shift are proficient in the use of fire suppression equipment available in the mine, and know the location of such fire suppression equipment.
(c) Each operator of an underground coal mine shall require all miners to participate in mine emergency evacuation drills, which shall be held at periods of time so as to ensure that all miners participate in such evacuations at intervals of not more than 90 days.
(1) The operator shall certify by signature and date that the mine emergency evacuation drills were held in accordance with the requirements of this section. Certifications shall be kept at the mine for one year and made available on request to an authorized representative of the Secretary, and to the representative of the miners.
(2) For purposes of this paragraph (c), a mine emergency evacuation drill shall consist of a simulation of the actions required by the approved mine emergency evacuation and firefighting plan described in paragraph (a)(1) through (4) of this section.
Coast Guard, DOT.
Final rule.
The Coast Guard is amending the regulations governing the drawspan of the Montlake Bridge across the east end of the Lake Washington Ship Canal by lengthening the hours that the draw need not open for the passage of vessels during the part of the year when vessel traffic is low. The change will relieve vehicular congestion during the peak congested period for road traffic.
This rule is effective October 9, 2003.
Comments and related material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD13-02-012 and are available for inspection or copying at Commander (oan), Thirteenth Coast Guard District, 915 Second Avenue, Seattle, Washington 98174-1067 between 7:45 a.m. and 4:15 p.m., Monday through Friday, except Federal holidays.
Austin Pratt, Chief, Bridge Section, Aids to Navigation and Waterways Management Branch, telephone (206) 220-7282.
On September 30, 2002, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Lake Washington Ship Canal, WA, in the
The Washington State Department of Transportation (WSDOT) requested this change in the drawbridge operations schedule to alleviate traffic congestion in the Montlake area by increasing the periods for part of the year in which the drawbridge need not open for the passage of vessels.
The draw of the Montlake Bridge, mile 5.2, Lake Washington Ship Canal at Seattle, Washington, opens on signal except that the draw need not open for the passage of vessels from 7 a.m. to 9 a.m. and from 3:30 p.m. to 6:30 p.m., Monday through Friday, except federal holidays, for any vessel of less than 1000 gross ton, unless the vessel has in tow a vessel of 1000 gross tons or over. The draw need only open on the hour and half-hour from 12:30 p.m. to 3:30 p.m. and from 6 p.m. to 6:30 p.m. Between the hours of 11 p.m. and 5 a.m. the draw opens if one hour notice is provided. This notice requirement has been voluntarily suspended by WSDOT. The bridge is staffed by operators 24 hours a day. This change removes this nighttime notice provision.
The Montlake Bridge provides 48 feet of vertical clearance above the mean regulated lake level of Lake Washington for the central 100 feet of the bascule span. Navigation on the waterway includes tugs, gravel barges, construction barges, sailboats, motor yachts, kayaks, rowing shells, and government vessels.
The Lake Washington Ship Canal bisects Seattle from east to west and is currently crossed by two fixed highway bridges and four vehicular bascules, of which the Montlake is the easternmost. At the western extremity seaward of the Hiram Chittenden Locks at Ballard is a single-leaf railroad bascule.
The Montlake Bridge is critical to north-south road traffic in its area. The closest alternative crossing is about 0.8 mile to the west and cannot be reached easily without traveling other congested streets during peak traffic hours.
This change would alleviate vehicular congestion by lengthening the periods
No comments were received in response to the notice and no change is being made to the rule as proposed in this rulemaking.
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).
The impact of this rule is expected to improve traffic flow on Montlake Boulevard without impeding navigation.
This conclusion is based on the fact that the majority of vessels plying the canal will not be hindered by this change. Many of the commercial and recreational vessels can pass the span without an opening. Vessel traffic diminishes significantly during the months that are affected while the annual maximal use period remains unaffected.
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 would not have a significant economic impact on a substantial number of small entities. There are no known small entities affected by this rule.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. No assistance was requested.
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 economically significant and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have analyzed this rule under Commandant Instruction M16475.1D, 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 (32)(e) of the Instruction, from further environmental documentation. There are no known effects of this rule that would warrant further analysis and documentation.
Bridges.
33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
(e) * * *
(2) * * *
(i) The draw need not open from 7 a.m. to 9 a.m. and from 3:30 p.m. to 6:30
Office of Child Support Enforcement (OCSE), HHS
Final rule; correction.
This document corrects the final child support enforcement regulations published in the
The final rule responded to comments on, and made technical corrections to, interim final child support enforcement regulations published in the
Effective on June 26, 2003.
Eileen Brooks, Deputy Director, Policy Division, OCSE, phone (202) 401-5369; fax (202) 401-4054; E-mail:
Paragraph (a)(4) is amended by removing “, in accordance with the requirements set forth in § 303.103 of this chapter”.
Paragraphs (a)(6), (c)(2), (c)(4), (h)(5), and (i)(1) are amended by removing “Secretary of the Treasury” and adding “Secretary of the U.S. Treasury” in its place.
Federal Communications Commission.
Final rule.
The Commission, at the request of KXLF Communications, Inc., substitutes DTV channel 5 for DTV channel 15 at Butte, Montana.
Effective October 20, 2003.
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Report and Order, MB Docket No. 03-118, adopted August 28, 2003, and released September 4, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Digital television broadcasting, Television.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Commission, at the request of Arkansas Educational Television Commission, substitutes DTV channel *9 for DTV channel *45 at Fayetteville.
Effective October 20, 2003.
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Report and Order, MM Docket No. 01-55, adopted August 27, 2003, and released September 4, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor,
Digital television broadcasting, Television.
47 U.S.C. 154, 303, 334 and 336.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Reallocation of Pacific sardine.
NMFS announces the reallocation of the remaining Pacific sardine harvest guideline in the exclusive economic zone off the Pacific Coast. On September 1, 2003, 59,508 metric tons (mt) of the 110,908 mt harvest guideline is expected to remain unharvested. The Coastal Pelagics Species Fishery Management Plan (FMP) requires that a review of the fishery be conducted and any uncaught portion of the harvest guideline remaining unharvested in Subarea A (north of Pt. Arena, CA) and Subarea B (south of Pt. Arena, CA) be added together and reallocated, with 20 percent allocated to Subarea A and 80 percent to Subarea B; therefore, 11,902 mt is allocated to Subarea A and 47,600 mt is allocated to Subarea B. The intended effect of this action is to ensure that a sufficient amount of the resource is available to all harvesters on the Pacific Coast and to achieve optimum yield.
Effective September 5, 2003.
James J. Morgan, Southwest Region, NMFS, 562-980-4036.
On December 31, 2002, NMFS published notice of a harvest guideline of 110,908 mt for Pacific sardine in the
On August 26, 2003, a regulatory amendment to the FMP developed by the Pacific Fishery Management Council (Council) was approved, and a final rule implementing the amendment was published in the
Landings in the Pacific Northwest in 2003 have been below the landings for the same period during the 2002 fishing season. Landings by September 1 in Subarea A north of Pt. Arena are expected to be 23,400 mt; therefore, 13,569 mt of the initial allocation to Subarea A of 36,969 mt will remain unharvested. Landings in California have also been below landings for the same period in 2002. Landings by September 1 in Subarea B south of Pt. Arena are expected to be 28,000 mt; therefore, 45,939 mt of the initial allocation to Subarea B of 73,939 will remain unharvested. From the best information available, a total of 59,508 mt of the 110,908 mt harvest guideline is anticipated will remain unharvested on September 1. Therefore, according to the requirements of the FMP, as amended, 20 percent of 59,508 mt (11,902 mt) is allocated to Subarea A, and 80 percent of 59,508 mt (47,606 mt) is allocated to Subarea B.
Any portion of 110,908 mt harvest guideline that remains unharvested in Subarea A and Subarea B on December 1, 2003, will be available for harvest coast-wide until the 110,908 mt harvest guideline is reached and the fishery closed.
This action is authorized by the FMP in accordance with 50 CFR 660.517 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA) finds for good cause under 5 U.S.C. 553(b)(B) that providing prior notice and an opportunity for public comment on this action is unnecessary because redistribution of the harvest guideline is a ministerial act required by the FMP to ensure that all harvesters have access to the resource. This action relieves potential restrictions on those affected by Federal regulations, and affording additional notice and comment would impede the agency's ability to manage Pacific sardine. Accordingly, providing prior notice and an opportunity for public comment would serve no useful purpose.
Because this rule merely provides a redistribution of a harvest guideline to meet the requirements of the FMP and does not require any participants in the fishery to take action or to come into compliance, the AA finds for good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness of this rule.
Because prior notice and opportunity for public comment are not required for this action by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
16 U.S.C. 1801
Office of Personnel Management.
Proposed rule.
The Office of Personnel Management (OPM) is issuing a proposed regulation regarding the detail of executive branch employees to the legislative branch. The purpose of the revision is to set forth guidelines for executive branch detailees to the legislative branch.
Comments must be received on or before October 24, 2003.
Send or deliver comments to Ms. Leah M. Meisel, Deputy Associate Director for Talent and Capacity Policy, Office of Personnel Management, 1900 E Street, NW., Room 6551, Washington, DC 20415-9700; e-mail
Mr. Michael J. Mahoney by telephone on 202-606-0960, by FAX 202-606-2329, or by TDD on 202-418-3134, e-mail
OPM is issuing proposed regulations under 5 U.S.C. 1103, setting forth guidelines for executive branch detailees to the legislative branch. The purpose of this proposed regulation is to maintain the separation of powers under the Constitution and prevent conflicts of interest among the branches and individuals involved.
I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees.
Freedom of information, Government employees, Reporting and recordkeeping requirements, Selective Service System.
Accordingly, OPM is proposing to amend part 300 of Title 5 of the Code of Federal Regulations as follows:
1. The authority citation is revised to read as follows:
5 U.S.C. 552, 3301, and 3302; E.O. 10577, 3 CFR 1954-1958 Comp., page 218, unless otherwise noted.
2. Amend part 300 by adding §§ 300.311 through 300.316 and a new center heading to read as follows:
In this part:
No executive agency (agency) shall detail, assign, or otherwise make available an employee of such agency for the performance of functions within or under the supervision of the legislative branch, without the approval of the Director of the Office of Personnel Management (“Director of OPM”). The Director of OPM shall not approve such detail, assignment, or making available for a period exceeding 180 days, except that, upon request from the office of the legislative branch to which the employee is detailed, assigned, or made available, the Director of OPM may approve one additional period not to exceed 180 days.
The Director of OPM shall not give approval with respect to an employee under § 300.312 unless:
(a) The functions to be performed by the employees within or under the supervision of the legislative branch:
(1) Will not involve;
(i) A conflict with respect to present or potential differing interests of the executive branch and the legislative branch; or
(ii) Any breach of applicable rules of professional conduct, including those governing the conduct of attorneys; and
(2) Will not involve disclosure, or any significant risk of disclosure, of information within the constitutional authority of the Executive to withhold because disclosure could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties; and
(b) The detail, assignment, or making available is consistent with applicable law, including section 1301(a) of title 31, United States Code.
The Director of OPM may direct the head of an agency to, and upon such direction, the head of such agency shall, terminate the detail, assignment, or making available of an employee of such agency for the performance of functions within or under the supervision of the legislative branch, whether made before or after the publication of this regulation in the
On a semi-annual basis, heads of agencies shall file a written report with
Any detail, assignment, or making available of an employee of an agency for the performance of functions within or under the supervision of the legislative branch that is in effect immediately prior to the publication of this regulation in the
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Boeing Model 777-200 and -300 series airplanes. For all airplanes, this proposal would require installation of a placard that advises of weight limits for a certain electrical rack, accomplishment of a one-time inspection and records check to determine the amount of weight currently installed in that rack, and removal of equipment from that rack if necessary. For certain airplanes, this proposal also would require a one-time inspection of the clevis end of the vertical tie rods that support the center stowage bins to measure the exposed thread, installation of placards that advise of weight limits for certain other electrical racks, a one-time inspection and records check to determine the amount of weight currently installed in certain other electrical racks, corrective actions, and replacement of the vertical tie rods for the center stowage bins or electrical racks with new improved tie rods, as applicable. This action is necessary to prevent failure of the tie rods supporting certain electrical racks and the center stowage bins, which could cause the racks or stowage bins to fall onto passenger seats below during an emergency landing, impeding an emergency evacuation or injuring passengers. This action is intended to address the identified unsafe condition.
Comments must be received by October 24, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-89-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Robert Kaufman, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6433; fax (425) 917-6590.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-89-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-89-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received a report indicating that, under certain conditions on Boeing Model 777-200 and -300 series airplanes, the vertical tie rods that attach the center stowage bins and electrical racks to the airplane structure can break. Multiple broken tie rods could allow the center stowage bins and electrical racks to fall onto the passenger seats below during an emergency landing. This condition, if not corrected, could impede an emergency evacuation or result in injury to passengers.
We have reviewed and approved Boeing Service Bulletin 777-25-0144, Revision 1, dated January 10, 2002. For all airplanes, the service bulletin describes procedures for installing a placard showing weight limits for electrical rack E7. For certain airplanes, the service bulletin also describes procedures for additional actions, as follows:
• A one-time inspection of the clevis end of the vertical tie rods that support
• Replacement of the vertical tie rods that support the center stowage bins with new improved tie rods (including replacing the existing tie rod with a new improved tie rod, torquing the jam nuts, and inspecting through the witness hole to make sure tie rod threads are visible).
• Replacement of the vertical tie rods that support electrical racks E9, E11, and E13 (including replacing the existing tie rod with a new improved tie rod, replacing an existing tie rod clamp with a new improved tie rod clamp, inspecting certain electrical racks for “free play,” adjusting jam nuts if necessary, and inspecting through the witness hole to make sure tie rod threads are visible); as applicable.
• Installation of placards showing weight limits for electrical racks E9, E11, E13, and E15; as applicable.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the applicable actions specified in the service bulletin described previously, except as discussed below under the heading “Differences Between Proposed Rule and Service Bulletin.” The proposed AD would also require a one-time records review and inspection to verify that the weight of equipment currently installed in certain electrical racks meets specified weight limits. This records review and inspection would involve determining what extra equipment has been installed in the subject racks of the airplane, performing a detailed inspection to determine that the subject equipment is installed on the airplane, calculating the total weight of the installed equipment, and comparing that total to the weight limit specified on the placard. If the weight of the equipment exceeds the limit specified on the placard, equipment must be removed from the rack to meet the requirement.
In developing an appropriate compliance time for this action, we considered not only the degree of urgency associated with addressing the subject unsafe condition, but the normal maintenance schedules for the majority of affected operators. In consideration of these factors, we have determined that 5 years represents an appropriate interval of time allowable wherein the proposed actions can be accomplished during scheduled maintenance intervals for the majority of affected operators. We find that this will ensure an acceptable level of safety.
The service bulletin refers to an inspection of the clevis end of the vertical support tie rod to determine whether a threaded sleeve is required. We find that, since the inspection involves measuring the length of the exposed thread, the procedures for this inspection constitute a detailed inspection. This type of inspection is defined in Note 1 of this proposed AD.
As part of the procedures for replacing the vertical support tie rods, the service bulletin specifies to inspect through the witness hole to ensure that tie rod threads are visible. We find that this inspection constitutes a general visual inspection. This type of inspection is defined in Note 2 of the proposed AD.
Operators should note that, although the service bulletin specifies that the manufacturer may be contacted for disposition of certain conditions, this proposal would require the disposition of those conditions per a method approved by the FAA.
Operators also should note that, as explained previously, this proposed AD would require a one-time records review and an inspection that are not included in the service bulletin. We find that these additional actions are necessary to ensure that the weight of equipment currently installed in certain electrical racks is within the limits specified in the placards to be installed per the service bulletin referenced in this proposed AD.
On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD.
We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.
There are approximately 282 airplanes of the affected design in the worldwide fleet. The FAA estimates that 84 airplanes of U.S. registry would be affected by this proposed AD.
For all airplanes: The records check and inspection to determine the weight currently installed in electrical rack E7 would take approximately 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this proposed records check and inspection on U.S. operators is estimated to be $5,460, or $65 per airplane.
For all airplanes: It would take approximately 1 work hour to accomplish the proposed installation of a placard specifying weight limits for electrical rack E7, at an average labor rate of $65 per work hour. Required parts would cost approximately $29. Based on these figures, the cost impact of this proposed placard installation on U.S. operators is estimated to be $7,896, or $94 per electrical rack.
For airplanes subject to the records check and inspection to determine the weight currently installed in electrical rack E9, E11, E13, or E15: It would take approximately 1 work hour per electrical rack to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this proposed records check and inspection is estimated to be as much as $260 per airplane.
For airplanes subject to the installation of a placard specifying weight limits for electrical rack E9, E11, E13, or E15: It would take approximately 1 work hour per electrical rack to accomplish, at an average labor rate of $65 per work hour. Required parts would cost approximately $29 per electrical rack. Based on these figures, the cost impact of this proposed installation is estimated to be as much as $376 per airplane.
For airplanes subject to the inspection of the clevis end of the vertical support tie rod for the center stowage bin to measure the exposed thread: It would take as much as 3 work hours per airplane (0.25 work hour per tie rod, with up to 12 subject tie rods per airplane) at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this proposed inspection is estimated to be as much as $195 per airplane.
For airplanes subject to the replacement of the vertical tie rods that support the center stowage bins: It would take as much as 6 work hours per airplane (0.5 work hour per tie rod, with up to 12 subject tie rods per airplane) at an average labor rate of $65 per work hour. Required parts would cost as much as $3,020 per airplane. Based on these figures, this proposed replacement is estimated to be as much as $3,410 per airplane.
For airplanes subject to the replacement of the vertical tie rods that support the electrical racks: It would take as much as 2 work hours per airplane (0.5 work hour per tie rod with up to 4 subject tie rods per airplane) at an average labor rate of $65 per work hour. Required parts would cost as much as $3,012 per airplane. Based on these figures, this proposed replacement is estimated to be as much as $3,142 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. The manufacturer may cover the cost of parts associated with certain actions in this proposed AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with certain actions in this proposed AD. As a result, the costs attributable to the proposed AD may be less than stated above.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent failure of the vertical tie rods that attach the center stowage bins and electrical racks to the airplane structure, which could cause the center stowage bins and electrical racks to fall onto passenger seats below, impeding an emergency evacuation or injuring passengers, accomplish the following:
(a) For airplanes in the groups listed in the table under paragraph 3., Part 1, paragraph E., of the Accomplishment Instructions of Boeing Service Bulletin 777-25-0144, Revision 1, dated January 10, 2002: Within 5 years after the effective date of this AD, do the applicable actions in paragraphs (a)(1) and (a)(2) of this AD.
(1) Install placards that show weight limits for electrical racks E7, E11, and E15; as applicable; per the Accomplishment Instructions of the service bulletin.
(2) For each electrical rack on which a placard was installed per paragraph (a)(1) of this AD: Perform a one-time inspection and records check to determine the weight of equipment installed in that electrical rack. This records review and inspection must include determining what extra equipment has been installed, if any, in the subject rack of the airplane, performing a detailed inspection to determine that this equipment is installed on the airplane, calculating the total weight of the installed equipment, and comparing that total to the weight limit specified on the placard installed per paragraph (a)(1) of this AD. If the weight is outside the limits specified in the placard to be installed per the service bulletin, before further flight, remove equipment from the rack to meet the weight limit specified in the placard.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(b) For airplanes in the groups listed in the table under paragraph 3., Part 1, paragraph C., of the Accomplishment Instructions of Boeing Service Bulletin 777-25-0144, Revision 1, dated January 10, 2002: Within 5 years after the effective date of this AD, perform a detailed inspection of the clevis end of the vertical support tie rod for the center stowage bin to measure the exposed thread, per the Accomplishment Instructions of the service bulletin. If the measurement of the exposed thread is outside the limits specified in Figure 2 of the service bulletin, before further flight, perform all corrective actions specified in steps 2 through 15 inclusive of Figure 2 of the service bulletin. Perform the corrective actions per the Accomplishment Instructions of the service bulletin, except as provided by paragraph (e) of this AD.
(c) For airplanes in Group 21, as listed in the Airplane Group column of the table under paragraph 3., Part 1, paragraph D., of the Accomplishment Instructions of Boeing Service Bulletin 777-25-0144, Revision 1, dated January 10, 2002: Within 5 years after the effective date of this AD, replace the vertical support tie rods for the center stowage bin with new improved tie rods (including replacing the existing tie rod with a new improved tie rod, torquing the jam nuts, performing a general visual inspection through the witness hole to make sure tie rod threads are visible, and making any applicable adjustment of the clevis) by doing all actions specified in steps 1 through 8 of Figure 3 of the service bulletin. Do these actions per the Accomplishment Instructions of the service bulletin, except as provided by paragraph (e) of this AD. Any required adjustment of the clevis must be done before further flight.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior
(d) For airplanes in the groups listed in the table under paragraph 3., Part 1, paragraph F., of the Accomplishment Instructions of Boeing Service Bulletin 777-25-0144, Revision 1, dated January 10, 2002: Do the actions in paragraphs (d)(1), (d)(2), and (d)(3) of this AD.
(1) Within 5 years after the effective date of this AD, replace the vertical support tie rods for electrical racks E9, E11, and E13 (including replacing the existing tie rods with new improved tie rods, replacing an existing tie rod clamp with a new improved tie rod clamp, performing a free-play inspection of certain electrical racks, adjusting jam nuts as applicable, performing a general visual inspection through the witness hole to make sure tie rod threads are visible, and making any applicable adjustment to ensure tie rod threads are visible) by doing all actions specified in Figures 5, 6, 7, and 9 of the service bulletin; as applicable. Do these actions per the Accomplishment Instructions of the service bulletin. Any required adjustment must be done before further flight.
(2) Before further flight after accomplishing paragraph (d)(1) of this AD, install placards that show weight limits for electrical racks E9, E11, and E13; as applicable; per the Accomplishment Instructions of the service bulletin.
(3) For each electrical rack on which a placard was installed per paragraph (d)(2) of this AD: Before further flight after accomplishing paragraphs (d)(1) and (d)(2) of this AD, perform a one-time inspection and records check to determine the weight of equipment installed in that electrical rack. This records review and inspection must include determining what, if any, extra equipment has been installed in the subject racks of the airplane, performing a detailed inspection to determine that this equipment is installed on the airplane, calculating the total weight of the installed equipment, and comparing that total to the weight limit specified on the placard installed per paragraph (d)(2) of this AD. If the weight is outside the limits specified in the placard, before further flight, remove equipment from the rack to meet the weight limit specified in the placard.
(e) Where the service bulletin specifies to contact Boeing for appropriate action, before further flight, repair per a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA; or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the Manager, Seattle ACO, to make such findings. For a repair method to be approved, the approval must specifically reference this AD.
(f) In accordance with 14 CFR 39.19, the Manager, Seattle ACO, is authorized to approve alternative methods of compliance for this AD.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the supersedure of an existing airworthiness directive (AD), applicable to certain Airbus Model A300 B4-600R and A300 F4-600R series airplanes, that currently requires a one-time visual inspection for damage of the center tank fuel pumps and fuel pump canisters, and replacement of damaged fuel pumps and fuel pump canisters with new or serviceable parts. That AD also requires repetitive visual inspections of the fuel pumps and repetitive eddy current inspections of the fuel pump canisters, and replacement of damaged fuel pumps and fuel pump canisters with new or serviceable parts. This action would mandate modification of the canisters of the center tank fuel pumps, which would terminate the repetitive inspections required by the existing AD. The actions specified by the proposed AD are intended to prevent damage to the fuel pump and fuel pump canister, which could result in loss of flame trap capability and could provide a fuel ignition source in the center fuel tank. This action is intended to address the identified unsafe condition.
Comments must be received by October 9, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-97-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Tim Backman, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2797; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-97-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-97-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On December 23, 1999, the FAA issued AD 99-27-07, amendment 39-11488 (65 FR 213, January 4, 2000), applicable to all Airbus Model A300 B4-600R and A300 F4-600R series airplanes, to require a one-time visual inspection for damage of the center tank fuel pumps and fuel pump canisters, and replacement of damaged fuel pumps and fuel pump canisters with new or serviceable parts. That action also requires repetitive visual inspections of the fuel pumps and repetitive eddy current inspections of the fuel pump canisters, and replacement of damaged fuel pumps and fuel pump canisters with new or serviceable parts. That action also reduces the applicability to include only those airplanes that have a trim tank system installed. That action was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The requirements of that AD are intended to detect damage to the fuel pump and fuel pump canister, which could result in loss of flame trap capability and could provide a fuel ignition source in the center fuel tank.
Since the issuance of AD 99-27-07, the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, has issued French airworthiness directive 2002-132(B) dated March 20, 2002. The French airworthiness directive continues to require repetitive inspections for damage of the center tank fuel pumps and fuel pump canisters and replacement of any damaged parts, and mandates modification of the canisters of the center tank fuel pumps, which would terminate the repetitive inspections required by AD 99-27-07.
Airbus has issued Service Bulletin A300-28-6069, Revision 01, dated May 28, 2002, which describes procedures for modification of the canisters of the center tank fuel pumps. The modification includes drilling holes on the doubler for the canister locating pins; installing the locating pins; preparing the fastener holes for electrical bonding; and installing new, improved canisters and canister bonding leads. The service bulletin also describes procedures for an operational test of the center tank fuel pumps after accomplishment of the modification.
Airbus also has issued Service Bulletin A300-28-6061, Revision 04, dated August 1, 2002. The original issue of the service bulletin was referenced in the existing AD for accomplishment of certain inspections and corrective action. Airbus also previously issued Revision 01, dated May 31, 1999; Revision 02, dated October 29, 1999; and Revision 03, dated September 4, 2001. None of these revisions contain substantial changes from the original issue.
The DGAC classified these service bulletins as mandatory and issued French airworthiness directive 2002-132(B), dated March 20, 2002, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept us informed of the situation described above. We have examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 99-27-07 to continue to require a one-time visual inspection for damage of the center tank fuel pumps and fuel pump canisters, and replacement of damaged fuel pumps and fuel pump canisters with new or serviceable parts. The proposed AD also would continue to require repetitive visual inspections for damage of the fuel pumps and repetitive eddy current inspections of the fuel pump canisters, and replacement of damaged fuel pumps and fuel pump canisters with new or serviceable parts. This new action would mandate modification of the canisters of the center tank fuel pumps, which would terminate the repetitive inspections required by the existing AD. The actions would be required to be accomplished in accordance with the service bulletins described previously.
On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD.
We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.
There are approximately 84 airplanes of U.S. registry that would be affected by this proposed AD.
The inspections that are required by AD 99-27-07 take approximately 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions
The inspections required by AD 99-27-07 were applicable to approximately 67 airplanes. Based on the figures discussed above, the cost impact of the current requirements of that AD on U.S. operators is estimated to be $8,710.
In this proposed AD, the inspections are applicable to approximately 17 additional airplanes. Based on the figures discussed above, the new costs to U.S. operators that would be imposed by this proposed AD are estimated to be $2,210.
The new modification proposed in this AD action would take approximately 11 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts would cost approximately $150 per airplane. Based on these figures, the cost impact of the proposed modification on U.S. operators is estimated to be $72,660, or $865 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing amendment 39-11488 (65 FR 213, January 4, 2000), and by adding a new airworthiness directive (AD), to read as follows:
To prevent damage to the fuel pump and fuel pump canister, which could result in loss of flame trap capability and could provide a fuel ignition source in the center fuel tank, accomplish the following:
(a) Prior to the accumulation of 5,000 total hours, time-in-service, or within 250 hours, time-in-service after February 8, 2000 (the effective date of AD 99-27-07, amendment 39-11488), whichever occurs later, perform a detailed inspection for damage of the center tank fuel pumps and fuel pump canisters, in accordance with Airbus All Operators Telex (AOT) 28-09, dated November 28, 1998. Repeat the inspection prior to the accumulation of 12,000 total hours time-in-service, or within 250 hours time-in-service after accomplishment of the initial inspection, whichever occurs later. Thereafter, repeat the inspection at intervals not to exceed 250 hours time-in-service, until accomplishment of the initial inspection required by paragraph (b) of this AD.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(b) At the applicable time specified in paragraph (b)(1), (b)(2), or (b)(3) of this AD: Perform a detailed inspection to detect damage of the center tank fuel pumps and perform an eddy current inspection to detect damage of the fuel pump canisters, in accordance with Airbus Alert Service Bulletin A300-28A6061, dated February 19, 1999; or Airbus Service Bulletin A300-28-6061, Revision 04, dated August 1, 2002. Repeat the inspections thereafter at intervals not to exceed 1,500 flight cycles, until accomplishment of paragraph (d) of this AD. Accomplishment of the initial inspections required by this paragraph constitutes terminating action for the requirements of paragraph (a) of this AD.
(1) For airplanes that have accumulated 11,000 or more total flight cycles as of February 8, 2000: Inspect within 300 flight cycles after February 8, 2000.
(2) For airplanes that have accumulated 8,500 or more total flight cycles, but fewer than 11,000 total flight cycles, as of February 8, 2000: Inspect within 750 flight cycles after February 8, 2000.
(3) For airplanes that have accumulated fewer than 8,500 total flight cycles as of February 8, 2000: Inspect prior to the accumulation of 7,000 flight cycles, or within 1,500 flight cycles after February 8, 2000, whichever occurs later.
(c) If any damage is detected during any inspection required by this AD, prior to further flight, replace the damaged fuel pump or fuel pump canister with a new or serviceable part in accordance with Airbus Alert Service Bulletin A300-28A6061, dated February 19, 1999; or Airbus Service Bulletin A300-28-6061, Revision 04, dated August 1, 2002.
(d) Inspections and corrective action accomplished before the effective date of this AD per Airbus Service Bulletin A300-28-6061, Revision 01, dated May 31, 1999; Revision 02, dated October 29, 1999; or Revision 03, dated September 4, 2001; are considered acceptable for compliance with the corresponding actions specified in this AD.
(e) Within 18 months after the effective date of this AD: Modify the canisters of the center tank fuel pumps (including an operational test) by doing all the actions per paragraphs 3.A., 3.B., 3.C., and 3.D. of the Accomplishment Instructions of Airbus Service Bulletin A300-28-6069, Revision 01, dated May 28, 2002. Accomplishment of this modification ends the repetitive inspections required by paragraph (b) of this AD.
(f) Accomplishment of the modification before the effective date of this AD per
(g)(1) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, is authorized to approve alternative methods of compliance for this AD.
(2) Alternative methods of compliance, approved previously in accordance with AD 99-27-07, amendment 39-11488, are approved as alternative methods of compliance with the applicable actions in this AD.
The subject of this AD is addressed in French airworthiness directive 2002-132(B), dated March 20, 2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the supersedure of an existing airworthiness directive (AD), applicable to certain Airbus Model A319, A320, and A321 series airplanes, that currently requires modifying the fuel pipe couplings and installing bonding leads in specified locations within the fuel tank. This action would continue to require the modification and installation, but would add new modifications of the bonding leads for certain airplanes. This action also would change the applicability in the existing AD. The actions specified by the proposed AD are intended to prevent ignition sources and consequent fire/explosion in the fuel tank. This action is intended to address the identified unsafe condition.
Comments must be received by October 9, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-125-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-125-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-125-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On July 13, 2000, the FAA issued AD 2000-14-15, amendment 39-11825 (65 FR 45513, July 24, 2000), applicable to certain Airbus Model A319, A320, and A321 series airplanes, to require modifying the fuel pipe couplings and installing bonding leads in specified locations within the fuel tank. That action was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The requirements of that AD are intended to prevent ignition sources and consequent fire/explosion in the fuel tank.
Since the issuance of AD 2000-14-15, Airbus has issued Service Bulletin A320-28-1077, Revision 04, dated December 14, 2001; and Revision 05, dated August 27, 2002. The original issue of the service bulletin was referenced as the appropriate source of service information for doing the actions required by that AD. Revisions 01, 02, and 03 of the service bulletin contain revised procedures, which include increasing the quantity of bonding leads installed. Revision 04 adds procedures for airplanes modified per the original issue of the service bulletin. The added procedures in Revision 04 involve installing an additional bonding lead at Rib 15 on the jet pump system for Model A319 and A320 series airplanes, or on the recirculation system for Model A321 series airplanes. Revision 04 also describes procedures for an electrical bonding resistance check upon completion of the modification. Revision 05 adds no additional work for airplanes modified by any of the previous revisions.
Airbus also has issued Service Bulletin A320-28-1079, dated November 30, 1998. The service bulletin describes procedures for modification of the fuel system of the additional center fuel tank. The modification includes cleaning certain bonding point attachments, sealing the bonding point attachments, and installing new bonding leads between the flanges of the fuel and vent pipes. The service bulletin also describes procedures for an electrical bonding resistance check upon completion of the modification.
The Direction Ge
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 2000-14-15 to continue to require modifying the fuel pipe couplings and installing bonding leads in specified locations within the fuel tank. The proposed AD also would add new modifications of the bonding lead for certain airplanes, and would change the applicability in the existing AD by excluding airplanes having the new modification. The actions would be required to be accomplished in accordance with the service bulletins described previously.
On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD.
We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.
There are approximately 227 airplanes of U.S. registry that would be affected by this proposed AD.
The actions that are currently required by AD 2000-14-15 take between 20 and 100 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. The cost of required parts is negligible. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be between $295,100 and $1,475,500; or between $1,300 and $6,500 per airplane.
Should an operator be required to accomplish the actions specified in Airbus Service Bulletin A320-28-1077, Revision 04, it would take approximately 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. The cost of required parts is negligible. Based on these figures, the cost impact of these new proposed requirements on U.S. operators is estimated to be $130 per airplane.
Should an operator be required to accomplish the actions specified in Airbus Service Bulletin A320-28-1079, it would take approximately 6 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. The cost of required parts is negligible. Based on these figures, the cost impact of these new proposed requirements on U.S. operators is estimated to be $390 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing amendment 39-11825 (65 FR 45513, July 24, 2000), and by adding a new airworthiness directive (AD), to read as follows:
To prevent ignition sources and consequent fire/explosion in the fuel tank, accomplish the following:
(a) Within 36 months after August 28, 2000 (the effective date of AD 2000-14-15, amendment 39-11825), modify the fuel pipe couplings and install bonding leads in the specified locations of the fuel tank, per the Accomplishment Instructions of Airbus Service Bulletin A320-28-1077, dated July 9, 1999; Revision 01, dated April 26, 2000; Revision 02, dated June 28, 2000; Revision 03, dated October 3, 2000; Revision 04, dated December 14, 2001; or Revision 05, dated August 27, 2002. As of the effective date of this AD, only Revisions 01, 02, 03, 04, and 05 may be used.
(b) Do the applicable actions required by paragraphs (b)(1) and (b)(2) of this AD at the times specified.
(1) For airplanes on which the actions required by paragraph (a) of this AD have been done per Airbus Service Bulletin A320-28-1077, dated July 9, 1999: Within 36 months after the effective date of this AD, install an additional bonding lead (including an electrical resistance check) by doing all the actions per paragraphs 3.B.(3) and 3.C. of the Accomplishment Instructions of Airbus Service Bulletin A320-28-1077, Revision 04, dated December 14, 2001; or Revision 05, dated August 27, 2002.
(2) For airplanes on which an additional center fuel tank is installed, as described in Airbus Service Bulletin A320-28-1079, dated November 30, 1998: Within 20 months after the effective date of this AD, modify the fuel system of the additional center fuel tank (including an electrical resistance check) by doing all the actions per paragraphs 2.A. through 2.E. of the Accomplishment Instructions of the service bulletin.
(c)(1) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, is authorized to approve alternative methods of compliance for this AD.
(2) Alternative methods of compliance, approved previously in accordance with AD 2000-14-15, amendment 39-11825, are not considered to be approved as alternative methods of compliance with this AD.
The subject of this AD is addressed in French airworthiness directive 2002-202(B), dated April 17, 2002.
Federal Highway Administration (FHWA), DOT.
Notice of proposed rulemaking (NPRM); request for comments.
The FHWA is requesting comments on proposed revisions to its National Bridge Inspection Standards (NBIS). This proposed action is necessary to address perceived ambiguities in the NBIS that have been identified since the last update to the regulation fourteen years ago. The proposed changes would clarify the NBIS language that is vague or ambiguous; reorganize the NBIS into a more logical sequence; and make the regulation easier to read and understand, not only by the inspector in the field, but also by those administering the highway bridge inspection programs at the State and Federal agency level.
Comments must be received on or before November 10, 2003.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at
Mr. Wade F. Casey, P.E., Federal Lands Highway, HFPD-9, (202) 366-9486, or Mr. Robert Black, Office of the Chief Counsel, HCC-30, (202) 366-1359, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal holidays.
You may submit or retrieve comments online through the Document Management System (DMS) at:
An electronic copy of this document may also be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at:
The FHWA bridge inspection program regulations were developed as a result of the Federal-Aid Highway Act of 1968 (sec. 26, Public Law 90-495, 82 Stat. 815, at 829) that required the Secretary of Transportation to establish national bridge inspection standards (NBIS). The primary purpose of the NBIS is to locate and evaluate existing bridge deficiencies to ensure the safety of the traveling public.
The 1968 Federal-Aid Highway Act directed the States to maintain an inventory of Federal-aid highway system bridges. The Federal-Aid Highway Act of 1970 (sec. 204, Public Law 91-605, 84 Stat. 1713, at 1741) limited the NBIS to bridges on the Federal-aid highway system. After the Surface Transportation Assistance Act
The condition of our nation's bridges is of paramount importance to the FHWA. In proposing revisions to the NBIS regulations, the FHWA will continue to ensure the “proper safety inspection and evaluation of all highway bridges” for the safety of the traveling public.
Accordingly, a seven-member FHWA team was formed to examine and analyze comments to the ANPRM and write the proposed rule. This team has over 92 years of combined experience working with the NBIS regulations and over 140 years of combined experience working with bridges and structures. Six of the team members are licensed professional engineers (PE).
The FHWA issued an ANPRM on September 26, 2001, at 66 FR 49154, to solicit comments on whether to revise the NBIS to incorporate current, state-of-the-art bridge inspection practices. The FHWA received 51 sets of comments to the docket. Comments to the ANPRM were submitted by representatives from 30 States, 3 Federal agencies, 2 counties, 5 consulting firms, 7 private citizens, 3 trade associations and 1 public interest group. In summary, the majority of the commenters believed the NBIS should be revised.
Most commenters believed the present definition of bridge should not be modified and has generally been accepted by most public authorities. In general, commenters felt that the existing bridge definition is well understood and recognized within the bridge community. The New York DOT indicated that its State law defines a bridge the same way and therefore, the current definition should not be changed.
The Advocates for Highway and Auto Safety commented that it would be appropriate for the FHWA to revisit the definition and consider expanding the national bridge inventory (NBI) to include all structures that can reasonably be said to perform bridge functions.
The New Jersey, Delaware, New Hampshire, Florida, and Connecticut DOT's and the American Road and Transportation Builders Association (ARTBA) indicated a preference to maintain the current method of determining bridge length and what minimum length should be used for reporting purposes. The South Dakota DOT and five private citizens indicated that they have concern regarding the definition as it applies to highly skewed, short-span reinforced concrete box culverts. The Minnesota DOT indicated that the State has changed their bridge length definition from 20 to 10 feet. The Maryland DOT recommended an alternative way to measure bridge length from “back of back wall” to “back of back wall” for beam type structures. The Advocates for Highway and Auto Safety (Advocates) commented that there are many bridges that are in all respects similar to bridges that are included in the NBI but are not counted since they are less than 20 feet. Also, the Advocates commented that the FHWA adopted the American Association of State Highway Transportation Officials (AASHTO) bridge definition without serious discussion or debate and without the agency compiling an independent record to support the AASHTO bridge definition.
On the question we posed in the ANPRM regarding the “impact of the possible inclusion of more bridges on public authorities, or on the FHWA that maintains the inventory, or on the highway bridge replacement and rehabilitation program (HBRRP) funds,” many commenters felt that doing this would add additional bridges to the inventory, require additional resources to inspect those bridges and place a burden on existing HBRRP funds. The Florida DOT thought the increase in bridges to be inspected would be minimal. The Iowa DOT felt public authorities should use their own expertise and experience in deciding how and when to inspect structures that do not meet the NBIS bridge definition. The Wyoming DOT felt public authorities can elect to inspect structures 20 feet or less in length if they feel it is warranted. The Advocates commented that under an expanded definition there would be improved public safety, the NBI would be an even more comprehensive bridge inventory and it would focus more attention and Federal resources, (
Most commenters did not want to see the current five-year underwater inspection interval changed. Three private citizens, David Stevens, Mark Bostick and William Hovell commented that they wanted to see the interval reduced to coincide with the two-year biennial above water inspections. The Advocates commented that it felt that the FHWA considers the bridge support above water as separate and distinct from portions of the bridge support below the waterline; it asked the FHWA to include underwater elements of bridge supports in the definition “bridges.” The Advocates also commented that until there is a valid basis (
A majority of commenters did not feel that those performing underwater inspections must be qualified licensed professional engineers. Four State transportation departments and the American Road and Transportation Builders Association felt that qualifications should be the same as those performing above water inspections. The California DOT felt that the team leader must be a licensed professional engineer and a qualified diver. The South Dakota DOT, Department of the U.S. Navy, and Collins Engineers, Inc. supported the concept of professional engineer-diver.
Most commenters felt that incorporating the evaluation of scour at bridges criteria within the NBIS regulation would have little impact since most States have scour programs. Regarding incorporation of the scour technical advisory within the NBIS some State transportation departments were in favor and some were not. The North Dakota DOT indicated that local authorities should be performing post storm event inspections and therefore post storm event inspections did not need to be addressed in the regulations. The North Carolina DOT felt that requiring States to have a major storm
Most commenters were not in favor of increasing the maximum inspection interval beyond the current four-year interval. New Jersey, North Carolina, Oregon, Florida and New Hampshire DOT's indicated that they do not use an extended inspection cycle and see no benefit in extending the inspection interval. Florida and New Hampshire DOT's indicated that State statute required a two-year inspection frequency. The Advocates commented that short inspection intervals should be maintained at two years, and that longer inspection intervals (not (to) exceed four years) are permissible as long as decisions for longer inspections are supported by engineering data.
Most commenters indicated that the individual in charge of inspection and reporting, who is a Professional Engineer (PE), should be required to have the same training as a bridge inspector and have additional experience in bridge inspection. Three private citizens, Craig Fink, Mathew Farrar, and Gary Doerr along with the Wyoming, Iowa, Tennessee, Illinois, Minnesota, Maine, California and Utah DOT's indicated that having the same training as bridge inspectors was not necessary. Two private citizens, Craig Fink and Gary Doerr, and the Minnesota, Maine, and California DOT's mentioned that the rules and regulations governing professional registration would ensure that the professional engineer be competent in the area of practice. The Michigan DOT indicated that in addition to initial training the individual in charge should have refresher training. The Advocates commented that those overseeing and conducting bridge inspections have adequate experience and appropriate and relevant education.
Commenters were evenly divided as to the need for certification training in proportion to the complexity of the bridge being inspected. The Wyoming and Wisconsin DOT's and 3 private citizens felt that adequate training is fine; however, it should be combined with relevant and verifiable experience. The New Jersey, California and Florida DOT's were strongly opposed to the idea of multi-level certifications and the New Jersey DOT thought that it would be difficult to administer. The Washington, Iowa and New York DOTs thought certification should be established by each agency or State. The Advocates commented that the NBIS should require levels of training appropriate for the complexity of the bridge structure to be inspected.
In the current regulation, the discipline of a professional engineer who is in charge of inspection and reporting is not specified. The majority of commenters thought the professional engineering discipline (
Most commenters believed that oversight of inspection efforts and quality control/quality assurance procedures, necessitated that inspection reports be changed by management when errors were encountered. Most commenters agreed that changes should be allowed, as long as the field inspector has been notified and concurs with the change. The Wisconsin, Delaware and Massachusetts DOTs indicated that only the inspection team leader should be authorized to make changes to an inspection report.
Most commenters felt that the NBIS reporting requirements were reasonable and need not be changed. The Florida DOT indicated that the States should be relieved of the requirement to maintain data on Federal agency bridges since that information is supplied directly to the FHWA.
The Delaware DOT thought the regulations ambiguous and should be refined. The Oregon DOT felt that much upgrading and reorganization is needed. One of the questions posed in the ANPRM was whether the current NBIS correctly addresses the requirements of 23 U.S.C. 151 and the comments indicate that it does.
Eleven State transportation departments recommended improvements to bridge inspection procedures. The Virginia DOT wanted to expand the NBIS to promote both safety inspections and maintenance evaluations. The Minnesota DOT wanted the NBIS to address private bridge ownership compliance with NBIS requirements. National certification standards, was mentioned by the Delaware DOT. The Massachusetts DOT wanted clarification of the term “unique or special feature.” The South Dakota DOT suggested “less stringent inspector qualifications for more simple type of structures.” The Oregon DOT proposed the incorporation of “element level bridge inspection” data. The Washington DOT suggested that the NBIS include any “structural element that can impact safety,”
Lastly, nine State transportation departments and a private citizen recommended specific procedures to enhance the NBIS which include the following: Handheld computer data entry in the field; flexibility in minimum inspection intervals for newer or historically stable bridges; flexibility for the States to set qualification standards and certify their inspectors; enhance technology and attract engineers to the bridge inspection field; provide a communication element among the States; establish unambiguous definitions; review the NBIS regulations on a more regular basis; establish a quality control/quality assurance program; use element level inspection data; define arms length inspections; and clarify inspector qualifications.
The proposed revisions to the NBIS are based in part on comments received to an advance notice of proposed rulemaking (ANPRM) published on September 26, 2001, at 66 FR 49154. The proposed changes address ambiguous language and clarify the following areas: Purpose; applicability; terminology; bridge inspection organization; qualifications; inspection frequency; inspection procedures; and inventory. The FHWA proposes to reformat the NBIS to place referenced definitions in one section instead of being buried throughout the regulation's narrative. The FHWA proposes to
This proposed revision would clearly delineate the responsibilities of a bridge inspection organization and define what can and cannot be delegated. This proposal would enhance and clarify the qualifications of personnel as well as inspection frequency. It proposes periodic refresher training for inspection personnel. It includes a provision for lengthening the underwater inspection interval from 60 months to 72 months under certain conditions with FHWA approval. The proposed revision would clearly define the interval for fracture critical member (FCM) inspections. The FHWA proposes to specifically address scour critical bridges, bridges vulnerable to seismic damage, and complex bridges. The FHWA proposes to establish quality control/quality assurance (QC/QA) requirements. The proposed rule also discusses procedures for follow-up on critical findings by the inspection program manager. Lastly, this action proposes to reaffirm inventory and reporting requirements including timeframes for submission of data by both the State and Federal agencies.
There were no comments on this topic.
The FHWA proposes to replace the section “Application of Standards” with “Purpose.” The FHWA proposes to reiterate the purpose of the NBIS as stated in 23 U.S.C. 151 to address the proper safety inspection and evaluation of all highway bridges. The current bridge definition does not differentiate between the types of passageways carried; however, the term “highway” does. The FHWA proposes to re-emphasize that for purposes of the NBIS, a highway bridge is a bridge that carries a public road.
The FHWA proposes to replace the section “Inspection Procedures” with “Applicability.” The FHWA proposes to clarify that the NBIS only applies to highway bridges that carry public roads.
The Minnesota DOT requested discussion about the responsibility of private bridge owners to comply with the NBIS. Collins Engineers, Inc. indicated that the NBIS should be extended to all bridges whether publicly or privately owned.
The FHWA acknowledges that some confusion has existed about the applicability of the NBIS to privately owned highway bridges. While 23 U.S.C. 151 states that the NBIS are for all highway bridges, the FHWA has no legal authority to require privately owned bridge owners to inspect and maintain their bridges. While the FHWA does not have the authority to compel the States to inspect private bridges, the FHWA strongly encourages that private bridge owners follow the NBIS as the standard for inspecting privately owned bridges. Because of the seamless nature of the transportation infrastructure within many States, the motoring public does not know the difference between a privately owned and publicly owned highway bridge. This being the case, it is extremely important that privately owned highway bridges be inspected to a nationally recognized standard. Private bridge owners that do not inspect their highway bridges to the NBIS can open themselves to liability for deaths or injuries because of possible highway bridge failure. State transportation departments that do not cause private bridge owners to inspect their highway bridges to the NBIS can open themselves to liability for deaths or injuries because of possible highway bridge failure. States and Federal Agencies should encourage owners of privately-owned highway bridges to inspect their bridges in accordance with these NBIS or reroute any public highways away from such bridges if NBIS inspections are not conducted.
The National Bridge Inventory (NBI) lists roughly 2,200 privately owned highway bridges in some 41 States and Puerto Rico. However, the total number of privately owned bridges is unknown because the States are not required to report them to the FHWA. Many privately owned bridges can be assumed to carry public roads, some of which are significant highways. The FHWA does not know if privately owned bridges are inspected using the NBIS or other standard and the FHWA does not know the level to which privately owned bridges are maintained. As a result, the FHWA cannot determine whether the public may be at risk when crossing a privately owned bridge.
Public authorities, must follow the NBIS for all highway bridges located on all public roads. The term “public road” is defined in 23 U.S.C. 101(a)(27) as “any road or street under the jurisdiction of and maintained by a public authority and open to public travel.” The NBIS applies to seasonally or periodically opened public roads and to limited access public access roads.
Highway bridges owned by Indian tribes are in a separate category. Indian tribes as sovereign nations, have a unique government-to-government relationship with the Federal government. There is no explicit requirement in 23 U.S.C. 144 that requires inventory of tribally owned bridges. Likewise, there is no explicit requirement in 23 U.S.C. 151 that requires inspection of tribally owned bridges. Absent such clear language, the FHWA has no legal authority to require federally recognized Indian tribes to inventory tribally owned bridges or to comply with the NBIS. While the FHWA does not have the authority to compel the federally recognized Indian tribes to inspect tribally owned bridges, the FHWA strongly encourages that Indian tribes follow the NBIS (23 U.S.C. 151), as the standard for inspecting tribally owned bridges, particularly those open to public travel. Indian tribes that do not inspect their bridges to the NBIS can open themselves to liability for deaths or injuries because of bridge failure.
The FHWA recognizes that the NBIS does not apply to federally owned bridges on roads that are used only by public employees and not open to the general public. These bridges and administratively used roads support behind-the-scenes operations, are used by public employees engaged in official business, and are not open to the general public. While the NBIS does not apply to such bridges, these bridges need to be periodically inspected to assure the safety of public employees, contractors, official visitors and the motoring public which may inadvertently use these facilities. The public looks at the transportation infrastructure as seamless and may not know that they have driven on an administratively used road. Furthermore, public authorities could be liable for injuries or death resulting from the use of bridges that are not properly and systematically inspected and maintained.
The Michigan DOT and Collins Engineers, Inc. were concerned about the applicability of the NBIS to railroad and pedestrian bridges over public roads. The Wisconsin DOT thought sign support structures, high mast lighting, retaining walls, and noise barrier structures should be addressed, in the NBIS. Collins Engineers, Inc. thought railroad bridges and overhead traffic signs should be addressed in the NBIS.
The FHWA proposes to clarify that 23 U.S.C. 151 applies only to highway bridges; therefore the NBIS does not apply to bridges that carry only pedestrians, railroad tracks, pipelines, or other types of non-highway passageways. The FHWA would continue to strongly encourage public authorities or bridge owners to inspect these non-highway carrying bridges and other significant structures. Similarly, the FHWA believes that the NBIS does not apply to inspection of sign support structures, high mast lighting, retaining walls, noise barriers structures, railroad bridges and overhead traffic signs. Public authorities have an obligation to the motoring public to periodically inspect and maintain these facilities. Likewise, non-public authorities including utility companies, railroads, and private owners who may own these facilities, must periodically inspect and maintain their structures for the safety of the motoring public.
The FHWA would continue to emphasize some minimal inventory requirements that apply to non-highway bridges over certain highways. These requirements are described in the “Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges”
The FHWA proposes to replace the section “ Frequency of Inspections” with “Definitions.” The FHWA proposes to include all definitions that are used within the NBIS in one section at § 650.305. This proposal would add clarity to the regulation and would provide a convenient reference for the commonly used terms.
The following terms used in the current regulation would be relocated to this section: (1) American Association of State Highway Transportation Officials (AASHTO) Manual,”
To ensure that there is a common understanding of bridge inspection terms within the NBIS, the following new terms would be added to this section: (1) Bridge inspection experience; (2) “Bridge Inspector's Reference Manual, 2002”, (formerly Bridge Inspector's Training Manual/90); (3) complex bridge; (4) comprehensive bridge inspection training, (5) damage inspection; (6) fracture critical inspection; (7) fracture critical member; (8) hands-on; (9) in-depth inspection; (10) initial inspection; (11) legal load; (12) load rating; (13) operating rating; (14) program manager; (15) routine inspection; (16) routine permit load; (17) scour; (18) scour critical; (19) special inspection; (20) team leader; and (21) underwater inspection.
The Virginia DOT, suggested that changes to the bridge definition might be appropriate to exclude certain minor structures from the inspection requirement. The majority of commenters did not want the definition changed, expressing concerns such as possible adverse economic impacts and conflicts with established State laws. The Advocates wanted to include all structures that can reasonably be said to perform bridge functions and thought that the FHWA adopted the AASHTO bridge definition without serious discussion or debate and without compiling an independent record to support the definition.
The FHWA adopted the AASHTO definition for “bridge” very early on in the National Bridge Inspection Program. The FHWA proposes to continue to adopt the AASHTO definition of a bridge. Title 23, U.S.C., section 151 directed the Secretary to establish national bridge inspection standards in consultation with the State transportation departments and interested and knowledgeable private organizations and individuals. According to the National Bridge Inventory (NBI), roughly 278,000 bridges or 47 percent of the bridge inventory is owned and operated by State transportation departments. Similarly, county governments own approximately 231,000 bridges or 39 percent of the NBI. This makes the States and counties the major stakeholders in the National Bridge Inspection Program. The State transportation departments report on all highway bridges within their State regardless of ownership, except for certain Federal bridges. This data is reported every April to the NBI. Based on 23 U.S.C. 151 direction, the FHWA has developed a close working relationship with the States on bridge related issues. This consultation with the State transportation departments through the AASHTO Highway Subcommittee on Bridges and Structures, convinced the FHWA to adopt the AASHTO definition of bridge that has been used since the NBIS was first drafted. This subcommittee is chaired by a State transportation official with voting representatives from each State, the District of Columbia and Puerto Rico. The subcommittee's Secretary is a FHWA official and the subcommittee has active FHWA participation. The development of the AASHTO Manual for Condition Evaluation of Bridges, which is referenced in the current NBIS, was sponsored by AASHTO, in cooperation with the FHWA.
While we exclude bridges 20 feet and less in length, public authorities and private bridge owners are strongly encouraged to periodically examine and also maintain those bridges less than 20 feet in length to an adequate standard. The existing definition for “bridge” has served the public for over 30 years to identify which structures should be inspected and this definition is well understood and accepted, as evidenced by the statements of a majority of the commenters. There is no compelling reason to change it. To expand the inventory to include a larger number of structures may result in redistributing limited resources from inspection of larger, more critical structures, to inspection of these shorter structures thereby reducing the overall safety of the inventory.
The National Bridge Inspection Program is established to provide safe bridges. The Highway Bridge Replacement and Rehabilitation Program (HBRRP) is established to provide Federal funding to the States for bridges. Congress establishes the total level of HBRRP funding, and adding bridges to the inspection inventory would dilute funds currently available for longer, more critical structures. While the HBRRP primary focus is on bridge rehabilitation and replacement needs, bridge inspection is an eligible activity under this program. For those States that use HBRRP funds to support their bridge inspection programs, any increase in the number of highway bridges to be inspected would further reduce funds available for rehabilitation and replacement needs and thus impact bridge safety. The NBI is one tool used by the HBRRP to apportion funds to the States fairly, and expanding the inventory would have an uncertain effect on the funding apportionment. Though the inspection program provides data for the NBI, and though the NBI is a useful tool for funding purposes and for many other non-safety applications, the FHWA believes that
The proposed definition of “Program Manager” in § 650.305, lists three overall responsibilities (
There were no comments on this topic.
The FHWA proposes to replace the section “Qualifications of Personnel” with “Bridge Inspection Organization.” The FHWA stewardship of the National Bridge Inspection Standards (NBIS) program over the years has shown that some States have not exercised sufficient control over delegated local agencies to assure compliance with the NBIS. The proposal, in general, is intended to clarify and describe bridge inspection program responsibilities, organizational requirements, and delegation requirements as well as expand on what is currently provided in § 650.303(a).
In § 650.307(a), the FHWA proposes to clarify the bridge inspection responsibilities of the States. The State transportation department is responsible for the inspection, reports, load ratings and other requirements of the NBIS for all non-Federal and non-tribal bridges within a State, regardless of public authority ownership. A public authority delegated with the authority by the State to inspect bridges could jeopardize State compliance with the NBIS if it fails to properly comply with the inspection standards. Therefore, although a State may delegate the authority to inspect, it is ultimately the State's responsibility to ensure compliance with the NBIS. As such, the FHWA proposes to clarify that delegation does not relieve the State transportation department of any of its responsibilities under the NBIS.
The FHWA also proposes to relieve States of responsibilities for bridges owned by Federal agencies. This would bring NBIS into line with current procedures followed by the FHWA and other Federal agencies.
Proposed § 650.307(b) lists the bridge inspection responsibilities of Federal agencies. The inspection, reports, load ratings and other requirements of the NBIS for all Federal bridges within the respective Federal agency's jurisdiction is the responsibility of that specific agency.
The inspection of jointly owned State border bridges is the responsibility of all owning bordering States and/or Federal agencies. The FHWA proposes that agreements for the delegation of border bridge inspections, reports, load ratings and other requirements of the NBIS to be in accordance with the requirements of § 650.307(d).
Proposed § 650.307(c) describes basic bridge inspection program organization requirements. State transportation departments and Federal agencies would be required to be organized with a unit or units that are responsible for setting statewide or Federal agency wide bridge inspection program policies and procedures, assuring quality inspections are performed throughout the State or agency, and maintaining the State bridge inventory. Most States, but not all, have such an organizational unit or units, usually located in the central office, that perform some or all of these activities. In order to improve inspection program consistency and uniformity, the FHWA proposes to require that all of these activities be performed at a statewide or Federal agency wide organizational level of the State transportation department or Federal agency. This section does not preclude the activities described from being assigned to a qualified consulting engineering firm.
Proposed § 650.307(d) describes specific requirements for the delegation of bridge inspections, reports, load ratings and other requirements of the NBIS to “public authorities” within the State. The States would continue to be able to delegate the authority to perform bridge inspection activities; however, the overall program responsibility could not be delegated. Some States currently delegate some or all bridge inspections, reports, load ratings and other requirements of the NBIS to local agencies by authority under State law or written agreements that clearly state in writing the roles of all agencies and entities involved. However, other States delegate bridge inspections without any such State laws or agreements. This section proposes to require States that choose to delegate bridge inspections, reports, load ratings and other requirements of the NBIS, to do so by State law or by written agreement. States and delegated agencies will be required to keep these agreements on file.
The FHWA proposes that the requirement to establish a bridge inspection organization responsible for Statewide or Federal agency wide bridge inspection policies and procedures, quality assurance, and bridge inventory activities of proposed § 650.307(c)(1) could not be delegated.
As with other State administered Federal-aid programs under title 23, U.S. Code, delegation of bridge inspections, reports, load ratings and other requirements of the NBIS must be accompanied by appropriate State transportation department oversight.
Proposed § 650.307(e) would clarify that each organizational unit with the responsibilities identified in paragraph (c) of this section must be led by a person meeting the qualifications of a program manager as defined in the proposed § 650.309. The current NBIS is vague about what organizational units this qualification applies to. This clarification pertains to the individual in charge of each organizational unit involved in bridge inspections, reports, load ratings, and other requirements of the NBIS, including organizational units of delegated agencies. For example, the program manager qualifications would apply to a State district that has the organizational responsibility for bridge inspections and reports, as well as to a town with only one bridge that has been delegated the authority for bridge inspections and reports.
The FHWA proposes to replace the section “Inspection Report” with “Qualifications of Personnel.” In this section, the FHWA proposes the minimum qualifications required for a program manager, a team leader, an underwater bridge inspector, and the individual for determining load ratings for bridges. Additionally, this section proposes to require refresher training for program managers and team leaders.
Six commenters to the docket affirmed the need to clarify the phrases “individual in charge,” “responsible capacity,” and “qualified for registration.” The Massachusetts DOT recommended that the term “qualified for registration” be removed from the regulation. The Minnesota DOT stated that the phrase “responsible capacity” did not need further clarification.
The FHWA concurs that the phrases “individual in charge,” “responsible capacity,” and “qualified for registration” need further clarification. Accordingly, the following changes are proposed in paragraph (a):
1. The individual in charge would be identified as a “program manager” and
2. The phrase “responsible capacity” would be clarified as “bridge inspection experience.” A definition for “bridge inspection experience” is provided in § 650.305. Emphasis has been placed on active participation in bridge inspection activities. The intent is to ensure that the predominant amount of experience is acquired through direct involvement in bridge inspection activities. States and Federal organizations may choose to develop additional experience criteria that consider aspects, such as, number and types of structures inspected.
3. The criteria to be qualified for registration as a professional engineer (PE) in current § 650.307(a)(1) would be removed. The term “qualified for registration” has been interpreted to mean that an individual satisfies the education and experience requirements for professional registration, but has not obtained the license. Another interpretation has been that an individual has successfully passed the professional engineer's exam and is awaiting issuance of his/her official license. The FHWA proposes in § 650.309(a)(1) that registration as a PE is the necessary requirement for someone with the responsibilities of a “program manager,” as an equivalent alternate to ten years of bridge inspection experience.
The majority of commenters were in favor of establishing bridge inspection training and experience requirements for the individual in charge of the bridge inspection and inventory program. Sixteen commenters noted that having a civil or structural related engineering degree, an Engineer-In-Training (EIT) certificate, or a Professional Engineer's (PE) license should count towards an experience requirement. The majority of those in favor of establishing a training requirement recommended that the person in charge be required to complete the same training as regular bridge inspectors. The majority of commenters were in favor of requiring a specific discipline for the PE of the person in charge. Civil/structural were the most commonly recommended disciplines. Many commenters thought that the laws governing professional engineering licensing within each State ensure that PE's only practice engineering in the fields in which they are qualified and experienced. A private citizen, Marc S. Grunnert, noted that years of experience might not be as important as exposure to different types of structures or the number of structures inspected over a given period of time. The ARTBA and the Florida DOT noted that States should be allowed a great deal of latitude in making personnel decisions and judgment calls with respect to qualifications.
The FHWA recognizes the majority of commenters recommended that the NBIS specify the engineering license discipline for the program manager who is a PE, preferably in civil or structural engineering. However, the FHWA concurs with the minority of commenters who indicated that the laws governing licensing within each State or Federal organization ensure that PE's only practice engineering in the fields in which they are qualified and experienced. Furthermore, the FHWA believes that it is the State or Federal organization's responsibility to ensure that those individuals involved in the bridge inspection program meet the minimum qualifications defined in the NBIS. The proposed regulations would not specify the engineering discipline; however, individual States and Federal organizations can adopt requirements that are more specific than the minimum requirements established by the NBIS.
References to the “Bridge Inspector's Training Manual” would be removed in the proposed regulation. A definition of “comprehensive bridge inspection training” which mentions the “Bridge Inspector's Reference Manual (BIRM)”
Commenters were almost evenly divided on the need to require certification training in proportion to the complexity of the structure being inspected. Seven of the commenters who were opposed to adding this requirement, supported the idea that both level of training and experience should be considered, particularly for the inspection of complex structures. Several commenters stated that this should be a responsibility of the bridge inspection program manager and does not need to be codified in regulation. The New Jersey, New York, North Carolina and Florida DOT's along with a private citizen, Omaha Greene, noted that it would be very difficult to administer a program where the training and experience requirements varied with the complexity of structures.
The FHWA agrees that program managers must have the same basic level of training as all other bridge inspectors. A requirement is proposed in § 650.309(a)(2) for the program manager to have successfully completed a comprehensive bridge inspection training course. The FHWA proposes to define comprehensive bridge inspection training in § 650.305. This requirement would apply regardless of whether the program manager is a PE or has ten years of bridge inspection experience. The FHWA proposes to allow 12 months for new or current program managers who have not participated in the training to complete the required comprehensive training. In proposed § 650.309(a)(2), States and Federal organizations would be permitted to develop their own comprehensive inspection training programs subject to approval by the FHWA. The FHWA will use the proposed comprehensive bridge inspection training definition and the BIRM as criteria to apply when reviewing these programs.
The “individual in charge” of a bridge inspection team in current § 650.307(b) would be identified as a “team leader” in § 650.309(b) and a definition of this person provided in § 650.305. The California DOT, and two private citizens, Omaha Greene and Rick Jager, recommended that an additional, alternate team leader qualification be added for those who possess an EIT certificate, have two years bridge inspection experience, and have completed an 80-hour training course based on the bridge inspector's training manual (BITM). The FHWA agrees with the comments regarding the consideration of engineering degrees and PE licensing status in evaluating an individual's experience level. Accordingly, the FHWA proposes the addition of an alternate qualification in § 650.309(b) that a “team leader” have a bachelors degree in engineering and have successfully completed the National Council of Examiners for Engineering and Surveying (NCEES) Fundamentals of Engineering examination, and have two years of bridge inspection experience. Additionally, team leaders would also have to complete a comprehensive bridge inspection training course.
There are approximately 84,500 bridges or 14 percent of the NBI that are posted in virtually every State, the District of Columbia and Puerto Rico. Bridge load rating calculations provide the basis for determining the safe load capacity of a bridge and critical load posting and permitting decisions are
The Bureau of Indian Affairs, the Michigan and Pennsylvania DOT's, and the Advocates recommended that a requirement for periodic bridge inspection refresher training be established and incorporated in the regulation. The recommended frequency of this training varied from one to eight years.
The FHWA concurs with the comments regarding the need for periodic refresher training. A requirement for refresher training every five years for all program managers and team leaders is proposed in § 650.309(d). The refresher training will assist in maintaining the skills and knowledge level needed to perform accurate and thorough bridge inspections in a consistent manner as technology, materials, bridge designs, and available tools change. The National Highway Institute (NHI) currently offers a FHWA approved bridge inspection refresher training course.
The Michigan DOT stated that specific requirements relative to an inspector's physical characteristics, such as vision and mobility, should not be addressed in the regulation.
The FHWA agrees with the comment that vision, mobility, and other physical characteristic requirements do not need to be addressed within the regulations. As stated above, State and Federal organizations are responsible for evaluating the qualifications of those involved in the bridge inspection program. The need for good vision and physical mobility are important in the performance of many bridge inspection activities, particularly since the most frequent method of nondestructive evaluation is visual and access to elements of most bridges requires climbing and other physical performance. States and Federal organizations are strongly encouraged to consider these characteristics when evaluating qualifications of bridge inspection personnel.
The Massachusetts, Connecticut, and South Dakota DOT's, the Advocates, and Collins Engineers, Inc., stated that minimum training requirements should be established for all bridge inspection team members.
Based on comments from the Massachusetts, Connecticut, and South Dakota DOT's, the Advocates, and Collins Engineers, Inc., the FHWA considered the establishment of minimum qualifications for bridge inspection team members who are not team leaders. Given that a qualified team leader must be on site during the inspection and that many organizations use seasonal helpers, we decided that this is a personnel issue that should be addressed at the State or Federal agency organization level.
The majority of commenters were not in favor of establishing a requirement that those performing underwater bridge inspections be licensed professional engineers (PE). Those who were opposed to this requirement felt that the supply of licensed PE divers would not be sufficient to meet the demand, resulting in significantly higher costs of underwater inspections without a corresponding benefit. Proponents for requiring that underwater bridge inspectors be licensed PEs reasoned that there is a sufficient cadre of licensed PE divers and that costs for such would be competitive with non PE divers and would provide for a much better product. Also, many commenters indicated support for requiring that a PE be present during the underwater inspection. Commenters also stated that the regulation should establish the same qualifications for both above and below water inspectors, noting that diving is merely a means of transportation.
The FHWA concurs with the commenters who were not in favor of requiring that those performing underwater bridge inspections be licensed PEs. Currently, the NBIS does not have a requirement for the qualifications of underwater bridge inspectors. Because the desired qualifications of such personnel vary with the complexity of the bridge, the FHWA proposes § 650.309(e) to require at a minimum that all underwater inspection divers who are not fully qualified as program managers or team leaders must complete a comprehensive bridge inspection training course. This requirement would help to ensure that a properly trained inspector, who does not necessarily have to meet team leader qualifications, performs the inspection in those instances when direct observation by a team leader is not possible. At a minimum, a qualified team leader must be on-site during the underwater inspection. The importance of having a qualified team leader on site during the underwater inspection cannot be overemphasized, and is proposed as a requirement under § 650.313(b).
The Association of Diving Contractors International, Inc. noted that in order to be compliant with the Occupational Safety and Health Administration's (OSHA) regulations contained in 29 CFR part 1910, subpart 7, dive team members must meet qualifications that require appropriate commercial diver training.
The FHWA position on this issue would be that in addition to having appropriate bridge inspection training, those personnel who participate as bridge inspection dive team members must meet minimum diver qualifications that entail training as a professional diver. Those qualifications should meet or exceed OSHA and/or industry safety standards and should be established by the “Bridge inspection organization” and need not be mandated in the NBIS. By giving the “Bridge inspection organization” the latitude to establish diver qualifications including training for its organization, the “Bridge inspection organization” may choose to establish diver qualification and training that exceed OSHA and/or industry standards. States and Federal organizations are strongly encouraged to consider stringent bridge inspection dive team member qualifications for the conduct of safe diving operations in support of bridge underwater inspections.
In this section, the FHWA examines inspection frequency and how an NBI of roughly 590,000 bridges should be inspected to assure the safety of the motoring public.
The majority of the commenters thought that the maximum inspection interval of 4 years for certain structures is reasonable and should not be extended; the remaining commenters said that 6 to 10 years may be appropriate for some low-risk structures. The majority of commenters stated that the maximum inspection cycle for most structures should remain at 2 years.
Additional responses included 13 commenters who stated that the FHWA approval process should be revisited to include additional structure types, and/or be made simpler or automatic for certain groups of low-risk structures. Several commenters stated that the 2 year frequency should be clarified. The ARTBA, Florida DOT, National Association of County Engineers (NACE), and Alcona County (Michigan), stated that there should be a grace period (30 to 90 days) for each cycle to account for such things as staffing and weather problems. The Wisconsin DOT suggested a calendar year approach so that inspections may be moved to any time of a calendar year to monitor structures during various weather conditions.
The FHWA proposes to replace the section “Inventory” with “Inspection Frequency.” Based on the NBI, there are approximately 561,000 bridges that are inspected on a 2-year cycle (
There are roughly 27,000 bridges or 4.7 percent of the NBI that are inspected on a 4-year inspection cycle. According to the NBI, there are 32 States using the 4-year inspection cycle. The FHWA recognizes the concerns of those commenters that suggest there should be a modified approval process and/or automatic approval of some low risk structures for the 4-year inspection cycle. However, the FHWA thinks it remains necessary at this time to retain a central approval process for the 4-year cycle to minimize risk to the traveling public. Subject to bridge safety, approvals will continue to be made on a case-by-case basis, and consideration will be given to unique and specific conditions identified in order to provide maximum flexibility to each requestor.
Regarding the commenters who suggested there should be an inspection “grace period,” the FHWA proposes to retain and more clearly define the current 30-day grace period. It is thought that if a longer period were granted, it could be applied for several subsequent cycles, which could have an adverse impact on safety.
The majority of commenters stated that it would be reasonable to increase the underwater inspection interval beyond 4 years for certain structures based on factors such as foundation type and materials, water quality and velocity, substructure material and condition. The majority of commenters also thought the current 5-year interval was appropriate for most structures. The New Jersey DOT, Department of the U.S. Navy and William Hovell, a private citizen, stated that the maximum interval for most structures should be reduced to 4 years to increase safety and to gain efficiency by conducting these inspections on a multiple of the “routine inspection” cycle. Several other commenters suggested that any increase in maximum frequency proposed by the FHWA should be an even-year cycle to coincide with routine inspection cycles.
With the April 1987 collapse of New York's Schoharie Creek bridge, national attention turned to underwater inspection. According to the NBI, there are roughly 47,000 bridges or 8 percent of the inventory that require underwater inspection in some 49 States, the District of Columbia and Puerto Rico. The FHWA concurs with the majority of commenters, and proposes at § 650.311(b), that the current 5-year (60 month) underwater inspection interval be maintained. Some commenters wanted a separate interval for underwater inspections from above water inspections that are conducted biennially. The FHWA continues to believe that the 5-year underwater inspection interval is a valid interval for the underwater inspection of a bridge pier and abutment substructures based on engineering judgment and review of NBI data.
The FHWA proposes to add the option for States to apply for a 72 month underwater inspection interval for certain bridges. In proposing the 72 month interval, the FHWA believes that applying engineering judgment and approval on a case-by-case basis to bridges with little or no change from inspection cycle to cycle in benign environments provides an adequate margin of safety to the motoring public. Industry standards, such as those provided by the American Society of Civil Engineers (ASCE) in their “Underwater Investigations Standard Practice Manual, 2001,”
Four-year frequencies may be used, if desired, but retention of the 60 month frequencies allows more flexibility to program managers. The FHWA also proposes to include a definition for “underwater inspection” at § 650.305.
Omaha Greene, a private citizen, and the Colorado and Oregon DOTs, stated that a firm inspection interval should be established for fracture critical member (FCM) inspections, and the first two of these three commenters thought the maximum interval should be 2 years.
Based on the NBI, there are approximately 14,000 bridges or 2.4 percent of the bridge inventory that require fracture critical member inspections in some 49 States, the District of Columbia and Puerto Rico. The FHWA agrees with these commenters, and proposes at § 650.311(c) that FCM inspections be conducted at intervals not to exceed 24 months, but that utilization of in-depth inspection and testing methods may exceed 24 months as outlined in an FCM Plan developed by the program manager. The FHWA also proposes to include a definition for “fracture critical inspection” and “fracture critical member” at § 650.305.
Many commenters indicated that the level to which individual bridges should be inspected depends on a variety of factors that should be evaluated by the individual in charge of the inspection program.
The FHWA proposes at § 650.311(d) to provide the program manager with the discretion to determine the level and frequency of these inspections to
The Oklahoma DOT, and Collins Engineers, Inc., noted that the level to which individual bridges should be inspected needed clarification. They suggested the type/depth of the inspection be determined by the individual in charge of the inspection program based on factors unique to the bridge.
The FHWA proposes to replace section “Inspection Procedures” with a revised section also entitled “Inspection Procedures.” The FHWA agrees that the depth to which individual bridges should be inspected depends on such factors as age of the bridge, traffic characteristics, state of maintenance, and known deficiencies. The FHWA proposes in paragraph (a) of this section, that each bridge shall be inspected in accordance with the procedures in the AASHTO Manual. The FHWA determined that there is sufficient guidance in this manual to allow the program manager to establish the depth and type of inspections appropriate for each bridge without further direction in the NBIS.
The FHWA proposes in paragraph (b) of this section, that at least one Team Leader be present at the bridge during inspections. The Team Leader being present is an existing requirement that is being emphasized. The FHWA also proposes to include a definition for “initial inspection” in § 650.305.
The FHWA proposes to replace the current § 650.303(c) with a new paragraph (c) and discuss the requirements for load rating and bridge posting. The FHWA also proposes to include a definition for “legal load,” “routine permit load,” and “operating rating” at § 650.305.
The FHWA proposes to replace the current § 650.303(d) with a new paragraph (d) that would place greater emphasis on actions taken pursuant to findings during the inspection as well as requiring the State or Federal agency to maintain reports on the results of all highway bridge inspections. We are proposing at § 650.313(d) that records be maintained in the bridge file for the life of the bridge.
The Pennsylvania, Oregon and Kansas DOT's, suggested the NBIS should require element level inspections to be performed and reported. The NBI ratings are thought by some to be too general. Those State transportation department's thought the element level data would be more meaningful to bridge owners for programming work. Those State transportation departments requested the annual submittal of NBI data should be made using element level bridge inspection data.
The FHWA recognizes that element level data is more meaningful to bridge owners for programming work, and that the element level data can be converted for Federal use. The FHWA agrees it would be desirable to work toward that goal for the future. However, a significant amount of additional testing of the conversion program and development of apportionment calculations is needed.
The Virginia DOT suggested the NBIS be expanded to promote both safety and maintenance evaluations. It felt States were already doing this as part of the inspection process, and that it should be a regulatory requirement.
The FHWA agrees that safety and maintenance evaluations should be conducted along with the NBIS inspections. The need for safety and maintenance inspections is already emphasized sufficiently in the AASHTO and the Bridge Inspector's Reference Manuals, and need not be mandated in the NBIS.
The Massachusetts DOT requested the NBIS contain a better definition of what is meant by “unique or special feature.” The NBIS requires that master lists of such structures be kept; however, this is difficult to do if it is not clear what falls under this definition. It was also suggested that procedures and manuals be developed for the inspection of segmental, cable-stayed and suspension bridges as well as procedures for underwater inspection of bridges and the creation of a diver's manual, similar to the “Bridge Inspector's Training Manual (BITM).”
The FHWA agrees that the NBIS should define what is required in these master lists. Accordingly, the FHWA proposes at § 650.313(e): to require the program manager to maintain only specific lists of fracture critical bridges, bridges requiring underwater inspection, scour critical bridges, and bridges subject to seismic damage.
In paragraph (f), the FHWA proposes to replace § 650.303(l). This proposed section would require the State or Federal agency to prepare an inspection plan for inspecting the fracture critical bridges.
In paragraph (g), the FHWA proposes to replace § 650.303(l)(2). This proposed section would require the State or Federal agency to prepare an inspection plan for inspecting bridges requiring underwater inspections. The plan would take into account the importance of underwater elements and contain procedures based on the risk of failure, as evaluated in the scour analysis required in paragraph (h).
In paragraph (h), the FHWA proposes to include requirements for action plans and inspection of scour critical bridges. There are roughly 20,600 bridges or 3.5 percent of the NBI that are identified as being scour critical in virtually all States and Puerto Rico. This proposed section would require the State or Federal agency to prepare a plan to monitor and/or correct deficiencies for scour critical bridges. The FHWA also proposes to include a definition for “scour” and “scour critical” at § 650.305.
In paragraph (i), the FHWA proposes to discuss inspection of bridges vulnerable to seismic damage and would require the State or Federal agency to establish a seismic damage vulnerability program as well as a plan to correct deficiencies in the bridge.
The FHWA agrees that the NBIS should contain a better definition of what is meant by “unique or special feature.” Accordingly, the following changes are proposed at § 650.313(j):
1. A new category of “complex” bridges would be established with a more specific definition of applicable bridge types.
2. An inspection plan would be required for each of the bridges falling in the “complex” category. Complex bridges would then be inspected in accordance with the plan.
3. The FHWA also proposes to include a definition for “complex bridge” at § 650.305.
The Pennsylvania and Connecticut DOT's suggested a formal quality assurance (QA) program be required to verify inspection findings. The Oregon and South Dakota DOT's suggested that the QA provisions were enforced differently in each State and asked that the QA requirements be clarified. The specific reference to the Federal code requiring performance of the quality assurance/quality control (QA/QC) of the bridge inspection program should be clarified.
The FHWA agrees that the regulation should specifically require QA/QC of the bridge inspection program.
1. A new provision would be added to the NBIS that requires States to implement a systematic quality control and quality assurance program;
2. No specific requirements would be given, but general guidelines would be provided to require the program to include periodic field review of inspection teams and their work to ensure uniformity and completeness and to review inspection reports and load rating computations; and
3. The program would be required to be submitted to the FHWA for approval. This would allow the FHWA to work closely with the States to develop and implement these programs.
The Oregon DOT suggested that the FHWA amend the NBIS to strengthen the need for critical follow-up and define what structures are required to be included. Additionally, the commenter requested that the FHWA clearly indicate a requirement for each State to initiate a process to follow-up on critical findings.
The FHWA evaluated the need to strengthen the follow-up on critical findings and specify what structures are required to be included. The following changes are proposed at § 650.313(l):
1. A new provision would be added in the NBIS to require States to establish a critical follow-up program;
2. The FHWA proposes to require that States notify the FHWA of actions taken to assure public safety in response to the critical findings reported by the inspectors; and
3. The FHWA believes it is not appropriate to establish a nationwide definition of the criteria for which bridges should be included in the critical follow-up program. The FHWA proposes to allow the States the discretion, in cooperation with the FHWA, to define the criteria.
Almost all comments received indicated that the NBIS reporting requirements were reasonable and need not be changed. The Florida DOT indicated that the States should be relieved of the requirement to maintain data on Federal agency bridges in its State. The Delaware DOT commented that the FHWA should not be concerned with the 90 or 180 days requirement that the State, Federal agency or other bridge owner has to enter new or changed data into their inventory.
The FHWA proposes a “§ 650.315 Inventory” to replace the current “§ 650.311 Inventory.” In paragraph (a), the FHWA proposes to add language requiring Federal agencies to be responsible for the inspection, inventory and reporting of data regarding bridges under their authority/control. The FHWA feels that this will ensure the best representation of the bridges owned by the Federal agencies. This practice has been in place since 1995 and the language will reflect the current practice. Since the Federal agencies have been inventorying and reporting their own bridges, the number of federally owned bridges has grown from just over 4,000 to over 7,000 bridges. The FHWA also proposes in paragraph (a) to add language that will accommodate future changes/updates to the “Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges,” December 1995 (the Guide). The FHWA feels that this will clarify that the most current version of the Guide is to be used in instances where updates will be made to the Guide.
In paragraphs (b), (c) and (d), the FHWA proposes to add language that will change the time that the Federal agency has to enter new or revised data into the inventory from 180 to 90 days from change in bridge status, bridge load restriction, bridge closure status or bridge inspection. The FHWA feels that this aligns better with the State requirements and is in the best interest of public safety and national security. In the event of a bridge catastrophe or national or statewide emergency, the State would have on hand the most current bridge information available.
There were no comments on this topic.
The FHWA proposes to create a new section entitled “Reference Manuals” to incorporate a manual, the AASHTO Manual for Condition Evaluation of Bridges (AASHTO Manual) and its 2001 interim revision. The AASHTO Manual is referred to in the current NBIS but not incorporated by reference. This manual is discussed in the proposed NBIS, and provides good guidance for the inspection and evaluation of highway bridges, and for that reason needs to be incorporated by reference.
While we are proposing to incorporate by reference the AASHTO Manual, it is important to note that the regulation on the NBIS, takes precedence over any guidance contained in the AASHTO manual. Where there may be implied or conflicting language between the two documents, the nationwide direction provided by the NBIS will always govern.
The FHWA is also in the process of reviewing 23 CFR part 650, subpart D, Highway Bridge Replacement and Rehabilitation Program (HBRRP). The FHWA published an advance notice of proposed rulemaking for the HBRRP on September 26, 2001, at 66 FR 49152. Additionally, the FHWA published a final rule for 23 CFR part 650, subpart G, Discretionary Bridge Candidate Rating Factor on October 15, 2002, at 67 FR 63539.
For ease of reference the following distribution table is provided:
All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, the FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period.
The FHWA has determined preliminarily that this action would be a significant regulatory action within the meaning of Executive Order 12866 and would be significant within the meaning of the U. S. Department of Transportation regulatory policies and procedures. This action is considered significant because of the substantial public interest in the safety of highway bridges. It is anticipated that the economic impact of this rulemaking would be minimal since funding the inventory of bridges is provided under 23 U.S.C. 144. The Office of Management and Budget (OMB) designated this proposed regulation as a significant regulatory action and has reviewed it under E.O. 12866.
These proposed changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 60 l-612) the FHWA has evaluated the effects of this proposed action on small entities. Since the proposed regulatory changes are primarily directed to the States, which are not considered small entities for the purposes of the Regulatory Flexibility Act, the FHWA is able to preliminarily certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. The FHWA welcomes comments on this analysis.
This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1532). Funding to inventory highway bridges, as well as inventory of Indian reservation and park road bridges, is currently provided under 23 U.S.C. 144, Highway bridge replacement and rehabilitation program (HBRRP). Bridge inspection is an eligible activity under the HBRRP and Federal funding is available to the States under the HBRRP.
This proposed action meets applicable standards in section 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 proposal under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.
This proposal will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the FHWA has determined that this proposed action would not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The FHWA has also determined that this proposed action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
The FHWA has analyzed this proposal under Executive Order 13175, dated November 6, 2000. The FHWA believes that this proposal will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
The FHWA has determined that this proposed rulemaking would result in an additional 67,000 burden hours (12 percent increase) on the States. This is based on review of the national bridge inspection data coupled with the additional NBIS requirements this rulemaking action would impose on the States. These additional requirements include development of seismic damage vulnerability and quality control/quality assurance programs; procedures for follow-up on critical findings; State-agency agreements; and comprehensive bridge inspection training. The revised total annual burden on the States would be 607,000 hours.
The FHWA will submit to the OMB the required clearance request documents to cover the additional burden hours at the time this proposed rulemaking is published in the
The agency has analyzed this proposed action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has determined that this proposed action would not have any effect on the quality of the environment.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order, because 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.
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Bridges, Grant Programs—transportation, Highways and roads, Reporting and recordkeeping requirements.
In consideration of the foregoing, the FHWA proposes to amend, title 23, Code of Federal Regulations, part 650, subpart C, as set forth below:
1. The authority citation for part 650 continues to read as follows:
23 U.S.C. 109 (a) and (h), 144, 151, 315, and 319; 23 CFR 1.32; 49 CFR 1.48(b), E.O. 11988 (3 CFR, 1977 Comp. p. 117); Department of Transportation Order 5650.2 dated April 23, 1979 (44 FR 24678); section 161 of Public Law 97-424, 96 Stat. 2097, 3135; section 4(b) of Public Law 97-134, 95 Stat. 1699; 33 U.S.C. 401, 491
2. Revise subpart C to read as follows:
This regulation sets the national standards for the proper safety inspection and evaluation of all highway bridges in accordance with 23 U.S.C. 151.
The National Bridge Inspection Standards (NBIS) in this part apply to all structures defined as highway bridges located on all public roads.
Terms used in this regulation are defined as follows:
(a) Each State transportation department must inspect, or cause to be inspected, all highway bridges located on public roads that are fully or partially located within the State's boundaries, except for bridges that are owned by Federal agencies.
(b) Federal agencies must inspect, or cause to be inspected, all highway bridges located on public roads that are fully or partially located within the respective agency responsibility or jurisdiction.
(c) Each State transportation department or Federal agency must include a bridge inspection organization that is responsible for the following:
(1) Statewide or Federal agency wide bridge inspection policies and procedures, quality assurance, and bridge inventory.
(2) Bridge inspections, reports, load ratings and other requirements of these standards.
(d) Each State transportation department may delegate bridge inspections, reports, load ratings and other requirements of these standards to public authorities. Delegation does not relieve the State transportation department of any of its responsibilities under this subpart. Delegation must be made according to State law or a fully executed agreement, which clearly states in writing the roles and responsibilities of all agencies and entities involved.
(e) Each organizational unit with the responsibilities identified in paragraphs (c)(1) or (2) of this section, including each organizational unit of an Agency with delegated authority to perform bridge inspections, reports, load ratings and other requirements of these standards, must be led by a program manager with qualifications defined in § 650.309.
(a) A program manager must possess, at a minimum, the following qualifications:
(1) Be a registered professional engineer, or have ten years bridge inspection experience; and,
(2) Successfully completed a Federal Highway Administration (FHWA) approved comprehensive bridge inspection training course prior to or within 12 months of becoming a Program Manager. Previous FHWA approved comprehensive bridge inspection training is also acceptable.
(b) A team leader must possess, at a minimum, the following qualifications:
(1) Have the qualifications specified in paragraph (a) of this section, or
(2) Have all of the following:
(i) A bachelor's degree in professional engineering from a college or university accredited by the Engineering Accreditation Committee of the Accreditation Board for Engineering and Technology (EAC/ABET);
(ii) Successfully passed the National Council of Examiners for Engineering and Surveying (NCEES) Fundamentals of Engineering examination;
(iii) Two years of bridge inspection experience; and
(iv) Successfully completed a FHWA approved comprehensive bridge inspection training course, or
(3) Have five years bridge inspection experience and have successfully completed a FHWA approved comprehensive bridge inspection training course; or
(4) Be certified as a Level III or IV Bridge Safety Inspector under the National Society of Professional Engineer's program for National Certification in Engineering Technologies (NICET) and have successfully completed a FHWA approved comprehensive bridge inspection training course.
(c) The individual charged with the overall responsibility for determining load ratings of bridges must be a registered professional engineer.
(d) Program managers and team leaders must complete FHWA approved bridge inspection refresher training every five years.
(e) An underwater bridge inspection diver must complete an FHWA approved comprehensive bridge inspection training course or other FHWA approved underwater bridge inspection training course.
(a) Routine inspections.
(1) Inspect each bridge at regular intervals not to exceed twenty-four months.
(2) Certain bridges require inspection at less than twenty-four month intervals. The program manager determines the level and frequency to which these bridges are inspected considering such factors as age, traffic characteristics, and known deficiencies.
(3) State or Federal agencies may inspect certain types of bridges at greater than twenty-four month intervals, not to exceed forty-eight months, with the FHWA's approval. This may be appropriate when past inspection findings and analysis justifies the increased inspection interval.
(b) Underwater inspections.
(1) Inspect underwater structural members at regular intervals not to exceed sixty months.
(2) Certain underwater structural members require inspection at less than sixty month intervals. The program manager determines the level and frequency to which these members are inspected considering such factors as construction material, environment, age, scour characteristics, condition rating from past inspections and known deficiencies.
(3) State or Federal agencies may inspect some underwater structural members at greater than sixty-month intervals, not to exceed seventy-two months, with the FHWA's approval. This may be appropriate when past inspection findings and analysis justifies the increased inspection interval.
(c) Fracture critical member (FCM) inspections.
(1) Inspect FCMs at intervals not to exceed twenty-four months.
(2) Certain FCMs require inspection at less than twenty-four month intervals. The program manager determines the level and frequency to which these members are inspected considering such factors as age, traffic characteristics, and known deficiencies.
(3) Nondestructive testing or other specialized techniques beyond visual inspection must follow the frequency specified in the FCM inspection plan discussed in § 650.313(f) and may exceed the twenty-four month interval.
(d) Damage, in-depth, and special inspections. The program manager determines the level and frequency of these inspections.
(a) Inspect each bridge in accordance with the inspection procedures in the AASHTO Manual.
(b) Provide at least one team leader, who meets the minimum qualifications stated in § 650.309, at the bridge at all times during each initial, routine, in-depth, fracture critical, special and underwater inspection.
(c) Rate each highway bridge as to its safe load-carrying capacity in accordance with the AASHTO Manual. Post the bridge in conformity with the AASHTO Manual or in accordance with State law, if the maximum unrestricted legal load or routine permit load under State law exceeds the load allowed under the operating rating or equivalent rating factor.
(d) Prepare bridge files as described in the AASHTO manual. Maintain reports on the results of highway bridge inspections together with notations of any action taken pursuant to the findings of such inspections. Maintain the records in the bridge file for the life of the bridge. Record the findings and results of bridge inspections on standard forms found in the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges.
(e) The program manager must identify and maintain a list of bridges with FCMs, bridges requiring underwater inspection, bridges that are scour critical, and bridges that are vulnerable to seismic damage.
(f) Fracture critical bridges. For each fracture critical bridge, prepare an FCM inspection plan containing the location and description of FCMs, the inspection frequency, and the inspection procedures. Inspect FCMs according to the FCM inspection plan.
(g) Bridges requiring underwater inspections. Develop a plan containing a description of the underwater elements, the inspection frequency and the procedures. Inspect those bridges requiring underwater inspections according to the plan.
(h) Scour critical bridges. For each scour critical bridge, prepare an action plan to monitor and/or correct deficiencies. Scour critical bridges should be inspected after a major flood event.
(i) Bridges vulnerable to seismic damage. Establish a seismic damage vulnerability program to evaluate the adequacy of existing bridges to resist damage from earthquakes and an action plan to correct deficiencies.
(j) Complex bridges. For each complex bridge prepare an inspection plan that includes specialized inspection needs and additional inspector training and/or experience required. Inspect complex bridges according to the plan.
(k) Quality control/quality assurance program. Provide systematic quality control (QC) and quality assurance (QA) to maintain the accuracy and consistency of the inspection program. Include periodic field review of inspection teams, and the review of reports and computations by a person other than the originating individual. Submit documentation of the QC/QA Program to the FHWA for approval.
(l) Follow-up on critical findings. Establish a Statewide or Federal agency-wide procedure to assure that critical findings are addressed in a timely manner. Notify the FHWA of the actions taken to assure public safety.
(a) Each State and Federal agency must prepare and maintain an inventory of all bridges subject to the NBIS. Certain structure inventory and appraisal (SI&A) data must be collected and retained by the State and Federal agency for collection by the FHWA as requested. A tabulation of this data is contained in the SI&A sheet distributed by the FHWA as part of the “Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges,” (December 1995) together with subsequent interim changes or the most recent version. Report the data using FHWA established procedures as outlined in the “Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges.”
(b) For all types of inspection listed in § 650.313(b), enter SI&A data into the State or Federal agency inventory not to exceed 90 days for State and Federal agency bridges and within 180 days for all other bridges after the date of inspection.
(c) For existing bridge modifications that alter previously recorded data and for new bridges, enter SI&A data into the State or Federal agency inventory not to exceed 90 days for State and Federal agency bridges and within 180 days for all other bridges after the completion of the work.
(d) For changes in load restriction or closure status, enter SI&A data into the State or Federal agency inventory not to exceed 90 days for State and Federal agency bridges and within 180 days for all other bridges after the change in status.
The documents listed in this section are incorporated by reference with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 and are on file at the Office of the Federal Register in Washington, DC. They are available as noted in paragraph (c)(1) of this section.
(a) Manual for Condition Evaluation of Bridges, 1994 second edition, AASHTO. [
(b) 2001 Interim Revisions to the Manual for Condition Evaluation of Bridges, AASHTO. [
(c) Availability of documents incorporated by reference. The documents listed in § 650.317 are incorporated by reference and are on file and available for inspection at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC. These documents may also be reviewed at the Department of Transportation Library, 400 Seventh
(1) American Association of State Highway and Transportation Officials (AASHTO), Suite 249, 444 North Capitol Street, NW., Washington, DC 20001.
(2) [Reserved].
Coast Guard, DHS.
Supplemental notice of proposed rulemaking.
The Coast Guard has revised its proposal to amend the regulations governing the operation of the Burlington Northern Santa Fe Railroad Bridge, mile 0.2, Prescott, Wisconsin; the U.S. 16-61 Bridge, mile 0.3, Prescott, Wisconsin, the Union Pacific Railroad Bridge, mile 17.3, Hudson, Wisconsin across the St. Croix River, and the S36 Highway Bridge at Stillwater, mile 23.4. The revised proposal would modify the dates and hours requiring advanced notice for openings on each of the bridges. This proposed change is intended to reduce the number of hours that a drawtender is required to be on site at each of the bridges while maintaining satisfactory service to vessels navigating the area.
Comments and related materials must be received by November 10, 2003.
Comments and related materials received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD08-02-035 and are available for inspection or copying at room 2.107f in the Robert A. Young Federal Building at Eighth Coast Guard District, Bridge Branch, 1222 Spruce Street, St. Louis, MO 63103-2832, between 7 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The telephone number is (314) 539-3900, extension 2378. Commander (obr) maintains the public docket for this rulemaking.
Mr. Roger K. Wiebusch, Bridge Administrator, (314) 539-3900, extension 2378.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD08-02-035), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Eighth Coast Guard District, Bridge Branch, at the address under
On April 16, 2002, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation Change, St. Croix River, MN in the
In accordance with 33 CFR 117.667, the draws of the Burlington Northern Santa Fe Railroad Bridge, Mile 0.2 at Prescott, Wisconsin, the U.S. 16-61 Bridge, Mile 0.3, at Prescott Wisconsin and the Union Pacific Railroad Bridge, Mile 17.3, at Hudson, Wisconsin, currently open on signal; except that, from December 15 through March 31, the draws open on signal if at least 24-hours notice is given. Currently, the S36 Stillwater Highway Bridge, Mile 23.4, opens on signal at various times throughout the day from May 15 through October 15, and on signal from October 16 through May 14. The NPRM proposed to amend the regulations governing drawbridges across the St. Croix River by adding a notice requirement for bridge openings during the summer season. Specifically, the NPRM proposed requiring that advance notice be given prior to 11 p.m. for openings between midnight and 7 a.m. from April 1 to October 15 for three of the four bridges.
The Burlington Northern Santa Fe Railroad, Mile 0.2 at Prescott initially requested a change to the regulation for the Burlington Northern Santa Fe Railroad, to open on signal from 7 a.m. to midnight and to open between midnight and 7 a.m., if the bridge was notified prior to 11 p.m during the summer tourism months. Although the request was submitted by only one bridge owner, the approval would also impact the U.S. 16-61 Bridge and the Union Pacific Railroad Bridge. Therefore, the proposal was expanded to include these two bridges. The S36 Bridge at Stillwater is more remotely located than the other three bridges, and we have proposed a separate opening requirement for the S36 Bridge rather than including it with the other three bridges.
The rule proposed by the NPRM included two separate changes to the existing regulation that affect the Burlington Northern Santa Fe Bridge, the U.S. 16-61 bridge, and the Union Pacific railroad bridge. The first change would restrict drawbridge openings between midnight and 7 a.m. by requiring that advance notice be made by 11 p.m. the night before. The second change would move up the date when the drawbridges require 24-hour notification for an opening from December 15 to October 16 each year. The Coast Guard received six letters commenting on one or both of the proposed changes.
One letter opposed the proposed requirement allowing the drawbridges to remain in the closed to navigation position between midnight and 7 a.m. except when a request for an opening was received prior to 11 p.m. The letter cited impacts on weekend boaters who may want late night openings, additional openings required by increases in the river level, and the difficulty in amending the bridge operating regulations once they have become effective. A review of the bridge opening data for the period of April 1 to December 14 for the years 1998—
Three letters proposed changing the time period that requires an advance notice from midnight to 7 a.m. to midnight to 8 a.m. This would allow the drawbridge owners to provide two standard eight-hour work shifts instead of one eight-hour shift and one nine-hour shift during 8 a.m. to midnight time period when the bridges would be required to open on signal. A review of the historical bridge opening data for the affected bridges revealed that the bridges opened on average less than two times per month between the hours of 7 a.m. and 8 a.m. for the period April 1 through October 31. The Coast Guard agrees that changing the end of the time period from 7 a.m. to 8 a.m. would have minimal impact on vessel traffic and facilitate more manageable work shifts for the bridge owner. Additionally, vessels that might be impacted by the change can avoid delays by requesting a bridge opening prior to 11 p.m. the day before. Therefore, we have amended the proposed rule to reflect the time change.
Two letters opposed moving the start of the winter 24-hour notification time period from December 15 to October 16. One of the letters cited that the boating season on the St. Croix River does not traditionally end until late October. The other letter cited a deterrent effect on vacationers wanting to view the fall colors on the river. After reviewing the bridge opening data for October 16 through November 1, the Coast Guard has determined that the amount of vessel traffic on the St. Croix River is sufficient to amend the beginning date for the 24-hour notification period from October 16 to November 1.
In summary, this SNPRM proposes modifying the rule as it was originally proposed in the NPRM by extending the time period requiring advanced notification before 11 p.m. during the summer tourism season by one hour from midnight to 8 a.m. instead of midnight to 7 a.m. This SNPRM also proposes moving the ending date of the summer operating hours from October 15, as it was originally proposed in the NPRM, to October 31.
This proposed rule is not a “significant regulatory action” under section 3(f) of the 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).
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.
Implementing the proposed regulation would allow the owners of drawbridges to reduce the number of hours drawtenders are required to be on site due a reduction in requests to open the drawbridges between midnight and 8 a.m. from 1 April to 31 October. Previously, these advanced notification requirements were temporarily instated to facilitate maintenance on the bridges. During these maintenance periods, the bridge owners received no complaints from commercial or recreational vessel operators. Additionally, this has become the widely accepted method of voluntarily requesting bridge openings from local vessel operators during non-maintenance periods without complaint.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. The Coast Guard identified local marinas as small entities that might be affected by this rule due to restricted access to the marinas during periods when drawtenders are not on site. These entities were consulted prior to initiating this rulemaking process to minimize the economic impact that might result from this proposed rule.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the proposed rule so that they could better evaluate its effects on them and participate in the rulemaking process. Any individual that qualifies or, believes he or she qualifies as a small entity and requires assistance with the provisions of this proposed rule may contact Mr. Roger K. Wiebusch, Bridge Administrator, Eighth Coast Guard District, Bridge Branch, at (314) 539-3900, extension 2378.
This proposed 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 proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not affect a taking of private property or otherwise
This proposed rule meets applicable standards in sections 3 (a) and 3 (b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. 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.
We have analyzed this rule under Commandant Instruction M16475.1D, 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 (32)(e), of the Instruction, from further environmental documentation. Promulgation of changes to drawbridge regulations have been found to not have significant effect on the human environment. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
1. The authority citation for part 117 continues to read as follows:
33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
2. In § 117.667, paragraph (a) and paragraph (b), introductory text, are revised and a new paragraph (b)(3) is added to read as follows:
(a) The draws of the Burlington Northern Railroad Drawbridge, mile 0.2, Prescott Highway Drawbridge, mile 0.3, and the Hudson Railroad Drawbridge, mile 17.3, shall operate as follows:
(1) From April 1 to October 31:
(i) 8 a.m. to midnight, the draws shall open on signal;
(ii) midnight to 8 a.m., the draws shall open on signal if notification is made prior to 11 p.m.,
(2) From November 1 through March 31, the draw shall open on signal if at least 24 hours notice is given.
(b) The draw of the Stillwater Highway Bridge, mile 23.4, shall open on signal as follows:
(3) From October 16 through May 14, if at least 24 hours notice is given.
Environmental Protection Agency (EPA).
Proposed rule; notice of public hearing.
Due to a request from a commenter, EPA is holding a public hearing on a notice of proposed rulemaking that was published in the
The public hearing will be held from 9 a.m. to 12 p.m. (MST) on Wednesday, October 8, 2003, at the U.S. EPA-Region 8, 999 18th Street, 2nd Floor Conference Center-Columbine Room, Denver, CO 80202.
If you would like further information about today's action, contact Kathy Kaufman, Integrated Policies and Strategies Group, (919) 541-0102 or by e-mail
We have received a request for public hearing on this rulemaking from one commenter, the Center for Energy and Economic Development (CEED). The CEED commented that EPA should not advance either the proposed or direct final rules, and that further opportunity for public comment is needed.
Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Nitrogen dioxide, Particulate matter, Sulfur oxides, Volatile organic compounds.
Office of the Secretary, Department of Transportation (DOT).
Denial of petition for rulemaking.
The Chairman of the Board of County Commissioners for Mercer County, North Dakota, petitioned the U.S. Department of Transportation to move Mercer County from the mountain to the central standard time zone. DOT held a hearing in the area and received extensive written public comments. Based on the information in the docket and the strong objections to a change voiced by the vast preponderance of commenters, we are denying the petition.
Joanne Petrie, Office of the Assistant General Counsel for Regulation and Enforcement, U.S. Department of Transportation, Room 10424, 400 Seventh Street, SW., Washington, DC 20590, (202) 366-4702.
Under the Standard Time Act of 1918, as amended by the Uniform Time Act of 1966 (15 U.S.C. 260-64), the Secretary of Transportation has authority to issue regulations modifying the boundaries between time zones in the United States in order to move an area from one time zone to another. The standard in the statute for such decisions is “regard for the convenience of commerce and the existing junction points and division points of common carriers engaged in interstate or foreign commerce.”
In a petition dated August 16, 2000, the Chairman of the Mercer County Board of County Commissioners asked the Department to move the county from the mountain time zone to the central time zone. The Commissioners submitted a memorandum outlining why the change would suit “the convenience of commerce.” The petition noted that the issue had been placed on the June 13, 2000, primary election ballot. The results of that election indicated that 1,180 voters favored the change while 1,038 voters opposed the change.
Because of the strong local interest in the proposal, DOT convened a public hearing very early in the process. The hearing took place on September 28, 2000, at the Civic Center in Beulah, ND, and was attended by approximately 100 people. Based on a show of hands conducted several times throughout the evening, approximately one-third of those in attendance supported the change and two-thirds opposed the change. The DOT representative also urged individuals, businesses, and organizations to send written comments to the Department's docket so that all the relevant facts could be collected and considered systematically.
The rulemaking has been extremely controversial in the community. Over 500 written comments were filed in the docket. Some of these comments were petitions signed by hundreds of people. Some people filed more than one comment and signed more than one petition. Even without doing a crosscheck of names, it is clear that the vast majority of people commenting on the issue in this proceeding opposed the proposed change.
Under the Uniform Time Act, as amended, the Secretary of Transportation can only change a time zone boundary if it would suit “the convenience of commerce.” Traditionally, we give great deference to community views on the assumption that the people who would be most affected by a proposed change are in the best position to advise us on the impact.
The proponents of central time made many strong arguments, which generally echoed the points made in the petition. Almost all noted the reliance on goods and services coming from the Bismarck-Mandan area, which is on central time. The closest airport is in Bismarck, most television and newspapers come from Bismarck, and many residents go to the central time zone for work, medical services, and recreation. The coal and energy industry, which is a major employer in the area, is closely tied to central time.
Those favoring the current time observance also made many strong arguments. One of the central themes was that observance of mountain time provides important advantages that make life more convenient, productive, and pleasant.
Many opponents of the change argued that the current time observance affirmatively helps business and is more conducive for farmers. Farmers opposed to the change were concerned about getting replacement parts later in the day and that grain elevators would close an hour earlier. Others anticipated a disruption in the farming day by having to attend to errands or engagements in town that would occur an hour earlier under central time. A number of commenters were concerned that a change would put small, local shops out of business, and negatively impact the overall economic growth of the area. Others noted, and appreciated the fact, that the current observance allows mail delivery one hour earlier.
Some commenters noted that they rely on the local radio station and the two weekly newspapers, rather than on media outlets originating in the central time zone. Others liked the time zone difference because they enjoyed viewing network television broadcasts an hour earlier than they would if the change were made.
Many of the strongest comments argued that the current observance benefits children, education, and family life. Many were concerned about children waiting for buses in the dark on icy, rural roads. Others believed that the current observance was more conducive to learning, after-school
Many of the proponents of the status quo argued that the current system works well and causes little confusion. Similarly, most appear to believe that a change would inconvenience them personally and make their lives difficult in some way.
Under the law, we are required to balance all the information in the record. Based on the information presented and the overwhelming community sentiment voiced in the record that a change would not “suit the convenience of commerce,” I am hereby denying the petition. The Commission is welcome to file another petition if circumstances change in the future.
Fish and Wildlife Service, Interior.
Proposed rule; withdrawal.
We, the Fish and Wildlife Service (Service), determine that the action of listing the mountain plover (
The supporting documentation for this rulemaking is available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service Field Office, 764 Horizon Drive, Building B, Grand Junction, Colorado 81506-3946, telephone; 970-243-2778, facsimile 970-245-6933, or e-mail
Allan Pfister, Assistant Field Supervisor, Grand Junction, Colorado (see
The mountain plover (
The mountain plover is associated with shortgrass and shrub-steppe landscapes throughout its breeding and wintering range. Historically, on the breeding range, the plover occurred on nearly denuded prairie dog colonies (Knowles
Mountain plovers nest in the Rocky Mountain and Great Plains States from Montana south to Nuevo Leon, Mexico. Most mountain plovers breed in Montana, Wyoming, and Colorado, with substantially fewer breeding birds occurring in Arizona, Kansas, Nebraska, New Mexico, Oklahoma, Texas, and Utah. Breeding was confirmed in 1999 in Mexico on a Mexican prairie dog (
Breeding adults, nests, and chicks have been observed on cultivated lands in Colorado, Kansas, Nebraska, Oklahoma, and Wyoming (Shackford and Leslie 1995; Shackford
Historically, the mountain plover has been found in a variety of habitats during winter, including grasslands and agricultural fields in California (Belding 1879 in Grinnell
Historically, breeding mountain plovers were reported as locally rare to abundant, and widely distributed in the Great Plains region from Canada south
As discussed by Knopf (1996b), the continental breeding range of the mountain plover has been reduced from its historical extent, especially in the eastern portion of the range. The mountain plover was formerly common in western and central Kansas (Goss 1891), and reported as numerous between Fort Supply, Oklahoma, and Dodge City, Kansas (McCauley 1877). The species was historically numerous in Colorado (Bailey and Niedrach 1965) and Wyoming (Knight 1902). Lower numbers of mountain plovers formerly occupied western South Dakota (South Dakota Ornithologist's Union 1991) and Nebraska (Knopf 1996b), and there is one known breeding reference from North Dakota (Roosevelt 1885). There was a single report of breeding mountain plovers in northern Mexico in 1901 (Sanford
Mountain plovers have been studied intensively in Weld County, Colorado, from the late 1960s to the present. Graul and Webster (1976) considered Weld County in northeastern Colorado the breeding stronghold for the mountain plover, a conclusion widely referenced by subsequent authors (
Breeding mountain plovers also have been reported from southeastern Colorado by others (Chase and Loeffler 1978; Nelson 1993; R. Estelle, Colorado Bird Observatory, in litt. 1994; M. Scott, BLM, in litt. 2000; K. Giesen, Colorado Division of Wildlife (CDOW), in litt. 2001). During a 1996 inventory, Carter
In Weld County, 60 to 70 percent of the mountain plover habitat occurs on the Pawnee National Grassland, a historically recognized breeding stronghold (F. Knopf, in litt. 1991). Today, nearly all mountain plovers have abandoned the Pawnee National Grassland. During the late 1960s, Graul and Webster (1976) estimated about 69,000 hectares (171,000 acres) of good habitat on the Pawnee National Grassland, with mountain plover densities of at least 10/kilometer
Graul (1973) hypothesized that mountain plover productivity on the Pawnee is influenced by drought and its corresponding effects on food supply. In 1995, the Pawnee received above-average spring rainfall resulting in lush vegetation growth not suitable as mountain plover nesting habitat. As a result, few birds were found there during the breeding season; conditions continued through 1996 and 1997, with few adult birds and very little reproduction observed through 2002 (Knopf 1996; F. Knopf, in litt. 2003).
Although mountain plovers nest on cultivated fields in southeast Colorado and adjacent States, 1 study (Shackford
Based on the data presented above, we estimate over 7,000 breeding mountain plovers in Colorado.
Although Phillips and Blaine Counties contain a major breeding concentration for the species (Knopf and
The most recent information documents that the mountain plover population in southern Phillips County increased from about 100 individuals in 1995, to 175 individuals in 2001 (Dinsmore 2001). In 2003, over 150 nests were found on the study site (Dinsmore, pers. comm. 2003). This increase is likely due to the recovery of black-tailed prairie dogs from a recent sylvatic plague epizootic. Mountain plovers at the Fort Belknap Indian Reservation increased from 0 to 20 from 1993 to 1998 following an increase in black-tailed prairie dogs and the introduction of bison grazing, and there may presently be as many as 100 individuals, although the change may be due to more rigorous inventory (Knowles and Knowles 2001; S. Dinsmore, pers. comm. 2003). Mountain plover densities on black-tailed prairie dog colonies at the Charles M. Russell National Wildlife Refuge declined by more than half from 1980 to 1996. Prairie dog numbers at Charles M. Russell National Wildlife Refuge have increased since 1996, and plover numbers have gone up slightly. Knowles and Knowles (2001) report that between 1992 and 2000 mountain plovers declined at their Central and Southwestern study areas, but increased slightly at their Northeastern study area.
Dinsmore (2001) concluded that mountain plovers in southern Phillips County are entirely dependent on an active black-tailed prairie dog population, and that the mountain plover abundance at his study site will likely parallel the population trends of black-tailed prairie dogs.
Knowles and Knowles (1996) estimated less than 2,000 mountain plovers in Phillips and Blaine Counties, and less than 800 additional individuals at the other occupied locations in the State. Based on his 6 years of research, Dinsmore (pers. comm. 2002) provided a rough estimate of 700 mountain plovers throughout all of Phillips and Blaine Counties, and noted that Knowles and Knowles (1996) estimate of 800 mountain plovers at other areas is reasonable. Therefore, we believe the best information currently available indicates the total population in Montana is approximately 1,500 mountain plovers (Knowles and Knowles 1996, Knowles and Knowles 1998, Dinsmore 2001, Dinsmore, pers. comm. 2002).
Additional inventories have been conducted in Wyoming that confirm the presence of mountain plovers at many of the previously reported locations. For example, surveys conducted in the Powder River Basin (Campbell, Converse, Sheridan, Crook, and Weston Counties) in 2001, in preparation for the Powder River Basin Oil and Gas Project, found 15 mountain plovers (Good
Knopf (in litt. 2001b) reported that mountain plovers may be more common in Wyoming than previously believed, particularly in Carbon County. In 1999 and 2000, a total of 159 and 105 mountain plover adults were reported from Sweetwater and Carbon Counties, respectively, with many fewer individuals reported from Albany, Bighorn, Fremont, Lincoln, Natrona, Park, Sublette, and Washakie Counties (P. Deibert, in litt. 2002). Surveys near Lysite in Fremont County found 39 mountain plovers on about 530 ha (1,300 ac) of suitable habitat (L. Hayden-Wing, Hayden-Wing Associates, in litt. 2003). Surveys for mountain plovers in south-central Wyoming in 2002 found a total of 50 adults and 11 nests (Hayden-Wing Consultants 2002). As many as 51 mountain plovers likely occurred on Foote Creek Rim in Carbon County in 1994, but the number declined to 26 in 2002 (Young and Erickson 2003). Most plovers have vacated habitat near the wind turbines and congregated on a prairie dog colony on the northern end of the Rim (Young and Erickson 2003). Nine nests were located on Foote Creek Rim in 2000 (Young and Good 2000).
The total number of mountain plovers observed on Thunder Basin National Grasslands declined from 53 to 37 from 1993 to 2002, while the area surveyed during this time quadrupled (T. Thompson, in litt 2003). Black-tailed prairie dog colonies in the area were affected by a significant plague event in 2001 and 2002. Mountain plovers on Thunder Basin nest almost entirely on black-tailed prairie dog colonies (Keinath and Ehlen 2002).
From 1979 to 2002, nesting was confirmed on and near the Antelope Coal Mine in the southern Powder River Basin, and breeding densities were reported to range from 0.9 to 2.4 birds/km
Knopf (in litt. 1991, 2001b) found mountain plovers on the Laramie Plains, in the vicinity of Shirley Basin, on the Chapman Bench (Park County) north of Cody, and on Mexican Flats (Carbon County) northwest of Baggs. Specific surveys of Chapman Bench between 1988 and 1999 found between 7 to 14 adult mountain plovers and some juveniles (P. Deibert, pers. comm. 1999a).
Mountain plovers also breed in shrub-steppe habitat in southwest Wyoming (Oakleaf
Based on the best information available from Wyoming, mountain plovers may number from 2,000 to 5,000 individuals (P. Deibert, pers. comm. 2003; F. Knopf, in litt. 2003).
No mountain plovers were found in 2001, following inventories of 92 sites, including black-tailed prairie dogs colonies, in 8 western Nebraska counties (K. Nelson, Nebraska Game and Parks Commission, in litt. 2003). The lack of mountain plovers may have been due to the survey occurring late in the breeding season. In 2002, a survey occurred in Kimball County exclusively, which is dominated by dry land wheat farming with very little shortgrass prairie. A total of 118 mountain plovers were found at the 66 locations surveyed, and all but 1 individual were in wheat fields. A total of 27 juvenile mountain plovers also were seen, with most of these in tilled, fallow ground. We have no information to assess trends in Nebraska, but the Nebraska Game and Parks Commission is concerned about the bird's viability in the State (K. Nelson, in litt. 2003).
Three pairs of nesting mountain plovers were reported near Fort Davis, Texas, in 1992 (K. Brian, Davis Mountain State Park, pers. comm. 1992). More recent breeding in Texas has not been reported due to lack of access to private land (P. Horner, Texas Parks and Wildlife Department, in litt. 1997).
From 1914 to the present, mountain plovers in Arizona have been reported during the breeding season from Apache, LaPaz, Maricopa, and Navajo Counties. A pair was found on Navajo Nation land near Winslow in June 1995, and an adult incubating three eggs was found near Springerville, Apache County, Arizona, in May 1996 (T. Cordery, Service, pers. comm. 1998; D. Shroufe, Arizona Game and Fish Department, in litt. 1999). In May 2002 breeding behavior was observed in three birds west of Springerville, in Apache County (Ted Cordery, BLM, pers. comm. 2003).
The most recent nesting record in Canada was one nest in southeastern Alberta in 1989 (S. Jewell, Service, in litt. 2000). No mountain plovers were found during searches conducted in Alberta and Saskatchewan in 2001 (C. Wershler, Sweetgrass Consultants, pers. comm. 2002).
Mountain plover breeding behavior was observed in 1998 in Nuevo Leon, Mexico, and one nest was found on a Mexican prairie dog colony in 1999 (Knopf and Rupert 1999a, Desmond and Ramirez 2002).
We believe that Montana, Wyoming, and Colorado represent the historic and current core mountain plover breeding range, although additional peripheral locations in Oklahoma and New Mexico may play an important role in the species' conservation.
Historically, mountain plovers have been observed during the winter in California, Arizona, Texas, Nevada, and on the California coastal islands of San Clemente Island, Santa Rosa Island, and the Farallon Islands (Strecker 1912; Swarth 1914; Alcorn 1946; Jurek 1973; Garrett and Dunn 1981; Jorgensen and Ferguson 1984; B. Deuel, American Birds Editor, in litt. 1992; D. Shroufe, in litt. 1999). In Mexico, wintering mountain plovers have been sighted in
All information we have reviewed indicates that California is the primary wintering ground for mountain plovers, supporting up to 95 percent of the United States' population of mountain plovers (Morey, in litt. 2003). However, recent isotope studies indicate that there may be a disproportionate number of males in the wintering flocks. Seventy-five percent of the feathers sampled from the Imperial Valley in the winter of 2002 were from males, and sixty-two percent were from males in the winter of 2003. This could indicate a slightly higher female mortality, or perhaps differential migration patterns between male and female plovers (
Mountain plovers are most frequently reported and found in the greatest numbers in two general locations in California—(1) The western Central Valley from Solano and Yolo Counties to Kern County (primarily the western San Joaquin Valley), and (2) the Imperial Valley in Imperial County. Throughout these areas, sightings occur on agricultural fields and noncultivated sites. Research conducted in the San Joaquin Valley concluded that the noncultivated sites are the preferred habitat there, while cultivated sites are the exclusive habitat in the Imperial Valley (Knopf and Rupert 1995, Wunder and Knopf 2003).
From 1961 to 1968 anywhere from 25 to 10,000 mountain plovers were counted in winter on Kern National Wildlife Refuge in the San Joaquin Valley (J. Engler, Service, in litt. 1992). In January 1994, researchers counted 3,346 mountain plovers during a simultaneous 1-day survey of 25 sites throughout California (B. Barnes, National Audubon Society, in litt. 1994). A similar coordinated survey at 31 sites in the Central and Imperial valleys in January 1998 estimated 2,663 mountain plovers (Hunting
Wunder and Knopf (2003) suggested that many mountain plovers have apparently shifted from the Central Valley as a result of habitat loss to southern California and the Imperial Valley. Recent search efforts and records for the Central Valley classify the mountain plover as rare and local, exceedingly rare, or accidental, within individual counties in the San Joaquin Valley (Edson and Hunting 1999; K. Hunting, California Fish and Game, pers. comm. 2003).
In the Imperial Valley, coordinated surveys occurred in February, November, and December 1999. The maximum effort of 26 observers in 15 parties over 2 days located 3,758 mountain plovers in December (Shuford
The only consistently collected information available to judge a population trend are the CBC data. The CBC data from 1955-1999 from all count circles in California reporting mountain plovers indicated a decline in mountain plovers of about 1 percent annually (J. Sauer, U.S. Geological Survey—Biological Resource Division (USGS-BRD), in litt. 2000; Wunder and Knopf 2003). This equates to a 35 percent decline in the population from 1955 to 1999 (J. Sauer, pers. comm. 2003). The CBC numbers fluctuate greatly from year to year based on observer variability, survey intensity, and the spatial and temporal distribution of mountain plovers (AMEC Earth and Environmental 2003).
In summary, with the heightened awareness to wintering mountain plovers during the past decade (including black-footed ferret recovery planning on prairie dog colonies in Mexico), and the mountain plover's winter flocking behavior, we believe it is unlikely that significant numbers of mountain plovers are not being detected. The widespread distribution of the species makes it difficult to obtain comprehensive population counts.
On December 30, 1982, we designated the mountain plover as a category 2 candidate species, meaning that more information was necessary to determine whether the species status was declining, stable, or improving (47 FR 58458). In 1990, we prepared a status report on the mountain plover indicating that Federal listing may be warranted (Leachman and Osmundson 1990). We elevated the mountain plover to a category 1 candidate species in the November 15, 1994, Animal Candidate Notice of Review (59 FR 58982). At that time, category 1 candidate species were defined as those species for which we had sufficient information on biological vulnerability and threats to support issuance of a proposed rule to list. In 1996, we redefined candidate species and eliminated category 2 and 3 candidate designations (61 FR 64481). Candidate species were defined using the old category 1 definition. The mountain plover retained its candidate species designation as reported in the September 19, 1997, Review of Plant and Animal Taxa (62 FR 49398). On July 7, 1997, we received a petition to list the mountain plover as threatened from the Biodiversity Legal Foundation. The Service responded by notifying the petitioner that petitions for candidate species are considered second petitions, because candidate species are species for which we have already decided that listing may be warranted. Therefore, no 90-day finding was required for the Biodiversity Legal Foundation's petition. We published a proposed rule to list the mountain plover as threatened on February 16, 1999 (64 FR 7587), and requested that comments be provided by April 19, 1999. We announced public hearings for the proposal on April 19, 1999, and concurrently extended the comment period to June 21, 1999 (64 FR 19108).
Higher priority listing actions precluded listing work on the mountain plover during Fiscal Years 2000 and 2001. On October 16, 2001, Earthjustice (representing the Biodiversity Legal Foundation, Biodiversity Associates, and Center for Native Ecosystems) submitted a 60-day Notice of Intent to sue to the Secretary of the Department of the Interior and the Service Regional Director for failure to meet listing deadlines for the mountain plover, as required by section 4(b)(6)(A) of the Act. The Service responded to Earthjustice on December 21, 2001, with a commitment to submit an amended listing proposal for the mountain plover by September 30, 2002. On October 7, 2002, we agreed to prepare a document to reopen the public comment period for this listing decision by November 30, 2002; hence, the December 5, 2002, notice to reopen the comment period (67 FR 72396). On February 21, 2003, we extended the comment period to March 21, 2003 (68 FR 8487).
In both the February 16, 1999, proposed rule (64 FR 7587) and the December 5, 2002, proposed rule (67 FR 72396), all interested parties were requested to submit factual reports or information that might contribute to the development of a final determination. Federal and State agencies, county governments, scientific organizations, and other interested parties were contacted and requested to comment. Several newspaper articles appeared in Montana, Wyoming, and Colorado following our distribution of background materials to print media. We also solicited and received the expert opinions of three independent specialists regarding pertinent scientific or commercial data and issues relating to the biological and ecological information for the mountain plover. We received a total of 194 written comments on the 1999 proposed rule.
We distributed a press release to announce the 2002 proposed rule. We again solicited peer review of independent specialists regarding the listing proposal and special rule. We received a total of 65 written, e-mail, or telephone comments on the 2002 proposed rule.
In response to the 1999 proposed rule, public hearings were requested in Nebraska by the Forest Service; in Montana by the Phillips County Prairie Ecosystem Action Council, the Phillips County Board of County Commissioners, and Erin Crowder; and in Wyoming by the Park County Board of County Commissioners, Wheatland Irrigation District, Wyoming Farm Bureau Federation, Laramie County Conservation District, Platte County Resource District, Antelope Grange, Mountain Valley Livestock, Inc., Ultra Resources, and John and Phyllis Thalken.
Public hearings were held at the following locations and dates:
• Billings, Montana, May 26, 1999.
• Malta, Montana, May 25, 1999.
• Greeley, Colorado, May 25, 1999.
• Lamar, Colorado, May 26, 1999.
• Casper, Wyoming, June 2, 1999.
We received written and verbal comments from State and Federal elected officials, State and Federal agencies, nongovernmental organizations, and private citizens. We received a total of 52 comments at the 5 public hearings. Of the total 246 written and verbal comments received on the 1999 proposed rule, 136 opposed, 41 supported, 53 expressed concern about the proposal, and 16 sought a list of the references or requested public hearings.
Following release of the December 5, 2002, proposed rule, we received requests for public meetings from Congressman Bob Filner representing the 50th District of California, the Oklahoma Farm Bureau, the Kansas Farm Bureau, and the Nebraska Farm Bureau. Following discussions with each of these individuals, we held public meetings at the following locations:
• El Centro, California, January 23, 2003.
• Elkhart, Kansas, February 5, 2003.
The Service distributed news releases announcing the meetings in El Centro, California, and Elkhart, Kansas, on January 16, 2003, and January 29, 2003, respectively. Notification of the Elkhart meeting also appeared on the local access television station within the Elkhart, Kansas, viewing area.
We received a total of 11 verbal comments from the 2 public meetings held in 2003. Of the total of 75 verbal and written comments received on the December 5, 2002, proposed rule, 25 comments opposed the listing proposal, 15 supported the proposal, 24 expressed concern, and 11 requested an extension of time or public hearing.
All written and verbal comments presented at the public hearings and received during the public comment period, including peer review comments, were considered in preparing this final determination. Most of the comments opposing the action criticized the quality of the science used to support the proposal, stated that we did not thoroughly address each listing factor, noted the potential for the Federal listing to restrict activities on both public and private lands, and suggested that listing should be delayed to allow other alternatives to work to conserve the species (
The estimate is based on a 1-day coordinated survey on the winter habitat in 1994, which was conducted by 95 observers covering 25 sites in 9 counties. In addition, both planned and incidental searches to locate and report mountain plovers in California have been ongoing for decades.
Many respondents challenged the reliability of the population estimate because of its reliance on a 1-day winter survey, and its failure to include the numerous mountain plovers that they believe occur on private lands throughout the nesting range. Counting animals on their winter habitat is an accepted technique for estimating the abundance of many species, with migratory waterfowl and big game being two examples. The survey coordinated by the National Audubon Society in California was a legitimate approach to monitor a wintering species, and represented a new effort to count mountain plovers.
The commenters are correct in stating that the population estimate alone cannot be used as a basis for listing. We have provided the abundance and distribution information to give the public a better sense of the status of the mountain plover.
According to Sauer (in litt. 1999), the survey-wide trend analysis lacked statistical confidence due to the wide variability in mountain plovers reported from individual routes in each of the years from 1967 to 1998. We concluded that, although the BBS is the only long-term trend information available in the breeding range, it is not a statistically reliable indicator of mountain plover population trends.
In compliance with the July 1, 1994, Service Peer Review Policy (59 FR 34270), peer reviews were provided by five specialists. The peer reviewers in 1999 were Dr. Marshall Howe with USGS-Patuxent Wildlife Research Center, Dr. C.R. Preston with the Draper Museum of Natural History in Cody, Wyoming, and Dr. James Dinsmore with Iowa State University in Ames, Iowa. Each of these peer reviewers concluded that there was sufficient information to list the mountain plover as threatened. The reasons cited by the peer reviewers included small population and declining trend of the species, prairie dog distribution and decline, habitat loss to grassland conversion, the influence of cropland nesting efforts on mountain plover conservation, and pesticide exposure.
Two peer reviewers provided comments to the 2002 listing proposal. One peer review was provided by Dr. Peter Paton with the University of Rhode Island in Kingston, and the second peer review was provided by Mr. Steve Forrest with Hyalite Consulting in Bozeman, Montana. Mr. Forrest was selected by Earthjustice following the settlement agreement reached between the Service and Earthjustice to expedite a listing decision for the mountain plover. Both of these peer reviewers also supported the proposal to list the mountain plover. The issues identified by each of them were similar to those received from the peer reviewers in 1999, but also included attention to other specific issues such as declines in Weld County, Colorado, Montana, and Thunder Basin National Grassland in Wyoming, as well as habitat fragmentation, prairie dog shooting, and the proposed special rule.
Since the 1999 listing proposal and following the 2002 re-opening of the comment period, we have acquired additional information regarding the concerns identified by each of the peer reviewers, as disclosed in this final determination.
Section 4 of the Act (16 U.S.C. 1531
As described in the 1999 and 2002 proposed rules, the historic conversion of grassland to cropland likely contributed to the decline of mountain plovers and their habitat (
From 1982 to 1997, rangeland decreased in Colorado by 217,200 ha (536,700 ac), in Kansas by 14,852 ha (36,700 ac), in Nebraska by 14,326 ha (35,400 ac), in Oklahoma by 16,512 ha (40,800 ac), in Montana by 59,894 ha (148,000 ac), and in Wyoming by 18,090 ha (44,700 ac). More acres were converted prior to 1992 in all States except Nebraska and Montana, where acres converted after 1992 were about the same or more than doubled, respectively. The total lands converted are a small fraction of the total rangeland. While the best information available does not allow us to quantify the acres of occupied mountain plover habitat converted, using the rate of rangeland conversion, we believe native grassland conversion is small and does not pose a substantial threat to mountain plovers.
The Montana Fish, Wildlife and Parks expressed concern over conversion of native habitat in Montana (P. Graham, Montana Fish, Wildlife and Parks, in litt. 1999). For example, Knowles and Knowles (2001) reported that a total of 13 percent of the land area in their central Montana study area has been converted from native grass from 1991 to 1999, and that mountain plovers have abandoned all but one of the sites that were converted. Mountain plovers in the central Montana study area declined from more than 100 in 1992 to about 70 individuals in 2000, as a result of grassland conversion (Knowles and Knowles 2001; C. Knowles, pers. comm. 2003).
Mountain plovers nest successfully on croplands in Colorado and perhaps contiguous States (V. Dreitz and F. Knopf, in litt. 2003; Shackford
In some areas in the mountain plover breeding range, grasslands are being converted to housing subdivisions. Of some concern is development of nesting habitat in South Park, Park County, Colorado, where the mountain plover population is now estimated to be about 2,300 individuals, which is the largest known remaining concentration of mountain plovers in the breeding range (Wunder
In the 1999 proposed rule, we stated that we believed cultivated lands in the southern portion of the breeding range created population sinks for the mountain plover, contributing to species decline. In an effort to better define the implications to mountain plover survival, research was initiated on cultivated fields and rangelands in five counties in eastern Colorado in 2001 (T. McCoy, in litt. 2001). Preliminary data analysis indicates that nest success is comparable between cropland and rangeland (V. Dreitz and F. Knopf, in litt. 2003). Nest failure was attributed principally to tillage and predation on cropland, and to predation on rangeland (V. Dreitz and F. Knopf, in litt. 2002). However, while hatching success on croplands and grasslands is similar in the southern portion of the breeding range, comparable data on juvenile survivorship are not available so mountain plover reproductive success on cropland relative to grasslands is not fully known (V. Dreitz and F. Knopf, in litt. 2002; Knopf, in litt. 2003).
Historically, mountain plover habitat in the Central Valley was lost following the decline of grazing elk, pronghorn, burrowing kangaroo rats, ground squirrels, and other mammals. The combined activities of these herbivores maintained suitable habitat conditions for mountain plovers, closely mimicking habitat characteristics found on breeding habitats (Knopf and Rupert 1995). Elk are now extirpated from the Central Valley, and pronghorns, once extirpated, have recently been reintroduced into the Carrizo Plains (BLM
Native grasslands in the San Joaquin Valley have been nearly eliminated. Of nearly 1,800,000 ha (4,400,000 ac) of native grasslands present prior to extensive settlement, no more than 600 ha (1,500 ac) remained in 1972 (Moore
Mountain plovers wintering in the San Joaquin Valley prefer native Valley sink scrub and nonnative grasslands over any of the more commonly cultivated land types (Anderson
Mountain plovers use cultivated croplands in the Imperial Valley of California, where in recent years (except the winter of 2002-03 when excessive rain prevented it) greater than 50 percent of all individuals of the species wintered (Wunder and Knopf 2003). Until agricultural development began in the 1940s, this historically desert region was not known to support the species. Here, 37 percent of the mountain
Other habitats within the historic wintering range of the mountain plover have been modified by modern livestock grazing practices that maintain grass height that is higher than what mountain plovers can use. This is the situation in the Carrizo Plain, which is recognized as a predictable wintering area and historically may have provided up to 50 percent of suitable plover wintering habitat. No more than 10 percent of the Carrizo Plain's 103,000 ha (254,000 ac) was suitable for mountain plovers in the early 1990s (S. Fitton, in litt. 1992; BLM
We were unable to precisely quantify the acres of mountain plover wintering habitat converted to other uses annually because a data base quantifying mountain plover habitat does not exist. However, information from the California Department of Conservation confirms the routine conversion of existing croplands to vineyards, orchards, and other uses. For example, from 1990 to 2000, the acreage of vineyards in California nearly doubled to a total of 230,000 ha (570,000 ac) (M. Penberth, California Department of Conservation, in litt. 2003). In nine counties in the Central Valley where mountain plovers are now reported as “rare and local,” the acres in vineyards increased by about 25 percent (31,000 ha (76,000 ac)) from 1990 to 2000 (Edson and Hunting 1999; M. Penberth, California Department of Conservation, in litt. 2003). Conversion to vineyards represents a loss of potential habitat, although the extent of use by plovers prior to conversion is unknown.
Urban development destroyed most noncultivated, historic coastal mountain plover winter habitat (Wunder and Knopf 2003), and anticipated urbanization and water transfers from rural to urban areas may impact the remaining natural habitats, as well as to existing cropland habitats in both the Central and Imperial Valleys. In California, the U.S. Census Bureau (2003) projected a 52 percent (17 million) population increase from 2000 to 2025. Based on past trends, considerable population growth is expected to occur in the Central Valley (American Farmland Trust 2003, Hunting
In summary, although most natural habitat used by mountain plovers in California has been destroyed, some crops that have replaced it provide foraging and roosting habitat (Knopf and Rupert 1995, Wunder and Knopf 2003). Given a high over-wintering survival rate in the San Joaquin Valley and Carrizo Plain and the ability of the plovers to use croplands successfully, Knopf and Rupert (1995) concluded that a loss of a major proportion of native habitats in the wintering range has not limited plover populations.
Mountain plovers have been reported in winter in other States in the United States and Mexico, but in comparison to California their numbers are few, and the threat of habitat destruction, modification, or curtailment is unknown with one exception. In the 1990s, the Ejido San Pedro CBC was initiated on a black-tailed prairie dog complex in northwestern Chihuahua, Mexico (birdsource.org 1992-2002). Mountain plovers have been reported in low numbers in most years, with no birds reported in some years (birdsource.org 1993-2002). Vegetation has been modified by livestock grazing to include woody shrubs, and prairie dog densities are low, which allows for increased vegetation height.
In conclusion, after reviewing the current and anticipated impacts to wintering habitat, we find that they do not pose significant threats to the mountain plover.
Domestic livestock grazing is pervasive throughout the breeding range of the mountain plover. Currently accepted domestic livestock grazing management emphasizes a uniform grass cover to minimize grassland and soil disturbance, whereas the landscape created historically by native herbivores was a mosaic of grasses, forbs, and bare ground that changed frequently in time and location (Knopf 1996a, Knopf and Rupert 1999b). The shift to livestock grazing strategies that favor uniform cover is believed to be partly responsible for the decline of mountain plovers in the peripheral breeding areas of Oklahoma and Canada (Flowers 1985, Wershler 1989), but has only been assessed in limited, localized instances elsewhere within the major portion of the breeding range. Mountain plovers are no longer reported from the Lewis Ranch in central Montana since elimination of grazing there in 1993 (Knowles and Knowles 2001). The decline of mountain plovers on the Pawnee National Grassland in Colorado is due to multiple years of wet spring weather, persistent grazing systems, the apparent difficulty of adjusting domestic livestock stocking rates to accommodate years of increased forage, the lack of infrastructure to modify grazing systems, and the sparse application of grassland burning and mineral block placement to restore nesting habitat (Forest Service 1994; S. Currey, Forest Service, in litt. 2002; F. Knopf, in litt. 2002; R. George, in litt. 2002; E. Humphrey, Forest Service, in litt. 2003). These examples are localized and do not appear to exemplify practices in a substantial portion of the breeding range. If the impacts were significant, we would anticipate being able to detect a declining trend in
Several range management practices conducted throughout the range of the mountain plover enhance the development of taller vegetation, thereby eliminating nesting opportunities (Graul and Webster 1976, Knowles and Knowles 1993). Examples of these practices include “pitting” to increase moisture retention in the soil, introduction of exotic grass species such as crested wheatgrass, watershed improvement projects to retain water, and, in Montana, fire suppression (Graul 1980, FaunaWest 1991, Knowles and Knowles 1993).
Localized range management activities on private and public lands also destroy mountain plover habitat. In 2001, for example, two known mountain plover breeding sites were destroyed in Valley County, Montana, by the construction of stock tanks in an area designated by the BLM as an Area of Critical Environmental Concern for mountain plover (C. Knowles, in litt. 2001).
Although range management activities may adversely affect some habitat for the mountain plover in specific instances, the complete absence of grazing causes mountain plover habitat to deteriorate. Therefore, we see grazing as necessary for the species, and not a threat to the species throughout its range.
The historic decline in abundance and distribution of prairie dogs likely contributed to the historic decline of the mountain plover (Knowles
Black-tailed prairie dogs have been reported to currently occupy about 256,000 ha (631,000 ac) in Colorado (Pusateri, CDOW, in litt. 2002), 36,000 ha (90,000 ac) in Montana, and an estimated 50,000 ha (125,000 ac) in Wyoming (Luce 2003). In Phillips County, Montana, 99 percent of the mountain plover nests found on survey transects were located on active prairie dog colonies (Dinsmore 2001). The largest population of mountain plovers in Montana (about 700 individuals) occurs on black-tailed prairie dog colonies in Phillips County, and mountain plover and prairie dog abundance are closely related there (Dinsmore 2001). Mountain plovers seem closely tied to active prairie dog colonies in Wyoming in the Powder River Basin, including Thunder Basin, particularly the Thunder Basin National Grassland. Mountain plovers are associated with black-tailed prairie dog colonies on the Pawnee National Grassland in northern Colorado (Nelson 1993; F. Knopf, in litt. 1999), in the Arkansas River Valley, and on the Comanche National Grassland in southeastern Colorado (K. Geisen, CDOW, in litt 2001). A large population of mountain plovers nest in montane grasslands without prairie dogs in South Park in central Colorado (Wunder
Mountain plovers sometimes nest on white-tailed prairie dog colonies in Colorado, Wyoming, and Montana (P. Deibert, pers. comm. 2003). Gunnison's prairie dogs occur at the periphery of the mountain plover breeding range in northern New Mexico and southern Colorado, and mountain plovers have been documented to nest on their colonies (5 out of 19 confirmed breeding sites on BLM lands in Taos County were on Gunnison prairie dog colonies (Hawks Aloft 2001b)). The geographic extent of mountain plover use of Gunnison colonies appears to be small, and limited information suggests no close dependence.
Because mountain plovers have no ability to modify their environment to create suitable nesting conditions, the decline of prairie dogs can result in the loss of suitable nesting characteristics in only a few weeks (Dinsmore 2001).
Outbreaks of sylvatic plague occur frequently throughout Montana, Wyoming, and Colorado on prairie dog colonies in the breeding range of the mountain plover. Sylvatic plague is an exotic disease to which prairie dogs have almost no immunity, although recent laboratory research indicates some isolated resistance to plague in black-tailed prairie dogs (Rocke, USGS, pers. comm. 2002). However, recently available population data across a majority of the species' range, that include many smaller populations (which represents the majority of all occupied habitat), indicate that occupied prairie dog habitat is more abundant and more stable than previously thought. The majority of black-tailed prairie dog populations occur in small, isolated complexes where the dynamics of disease appear to be fundamentally different than in larger populations. The reproductive and dispersal capabilities of the species, as indicated by the distribution, abundance, and trends data for the species, may be sufficient to counteract, at least partially, the impacts of a disease that occurs only sporadically in time and space (Service 2002).
Prairie dog control, principally by poisoning, continues to occur on private and public lands throughout the mountain plover's breeding range, although the likelihood of control on public lands is minimized by Federal agency policies (Service 2002). Black-tailed prairie dog populations are capable of recovering rapidly from chemical control efforts that temporarily reduce their numbers (or from other depressant factors such as disease (Knowles 1986) or drought (Hoogland 1995)).
Mountain plovers may vacate prairie dog colonies following plague or poisoning because of the rapid deterioration of habitat conditions (Dinsmore 2001), but we consider plague or prairie dog control to be a temporary impact on mountain plovers. For example, between 1992 and 1996, prairie dog occupation of colonies in Montana's area of greatest prairie dog abundance was reduced by as much as
Prairie dog shooting is popular throughout the breeding range of the mountain plover, and intense, persistent shooting of black-tailed prairie dogs has been shown to reduce prairie dog abundance, and perhaps prevent or retard recovery of colonies low in abundance due to sylvatic plague or poisoning (Vosburgh and Irby 1998; Knowles and Vosburgh 2001; L. Hanebury, pers. comm. 2003). We believe prairie dog shooting will continue to occur in areas occupied by mountain plovers. While it has the potential to degrade or prevent recovery of habitat and impact mountain plover breeding success, we believe those instances are localized and infrequent.
New information made available this year from many State and Federal agencies indicates the quantity of occupied black-tailed prairie dog habitat has increased in the last several decades (Luce 2003). Given the above summary of prairie dog habitat abundance, distribution, and threats and the subsequent impact on the mountain plover, we believe modification of prairie dog habitat is not a substantial threat to the mountain plover.
The development of oil, gas, coalbed methane, and other mineral resources commonly occurs throughout the breeding range of the mountain plover. Expedited oil and gas development is a national priority, and a new interagency task force has been assembled to assist Federal agencies in their efforts to expedite review and completion of energy-related projects on Federal lands (Executive Order 13212). However, we were able to find little documentation that this mineral resource development poses a current or future threat to mountain plovers.
Numerous current BLM planning documents detail the number of wells, roads, and other facilities required to accommodate development of these mineral resources. A summary of these planning documents for Wyoming shows at least 10 authorized or proposed active natural gas and coalbed methane projects in known or potential mountain plover nesting habitat (
Another example of increased energy development is Phase I of the SeaWest Wind Power Project in Wyoming. This wind farm is now operational and has disturbed 30 ha (70 ac) on the Foote Creek Rim Mesa, but final build-out calls for 667 to 1,000 wind turbines, that would permanently occupy 208 ha (515 ac) when complete.
The development of oil, gas, and other energy resources requires construction of individual project pads, access roads, travel corridors, pipelines, power lines, and other facilities (Brockway 1992). The degree of impact on mountain plovers from these activities depends on project size, density, frequency of maintenance and operation, and proximity to mountain plovers. However, the actual impact of this development on mountain plovers is unknown.
Energy development has the potential to modify specific nesting, brood rearing, and foraging habitat characteristics, such as vegetation height, proportion of bare ground, prey density, and predator regimes (S. Dinsmore, Mississippi State University, in litt. 2003). Mountain plovers nest on nearly level ground and often near roads, adults and chicks often feed on or near roads, and roads may be used as travel corridors by mountain plovers, all of which make plovers susceptible to being killed by vehicles (McCafferty 1930, Laun 1957, Godbey 1992, Knowles and Knowles 2001), although we have no evidence that this has had an impact on mountain plover population levels.
Energy development also results in soil disturbance, and because the mountain plover has been described as a “disturbed prairie” species (Knopf and Miller 1994), this disturbance could be inferred as benign or even beneficial to the species. The BLM has standards for revegetation of disturbed sites, and for control of invasive weed species along roads, well pads, and other disturbed sites. In the Powder River Basin of Wyoming, anticipated problems with invasive species induced by coalbed methane mining have not materialized to any significant extent (J. Carroll, pers comm. 2003).
About 150 ha (370 ac) of mountain plover habitat at the Antelope Coal Mine in Converse County, Wyoming, have been affected by mining disturbance since 1982 (P. Deibert, pers. comm. 1999b). Mountain plover inventories conducted from 1982 to 2001 have documented the presence of mountain plovers and broods within and contiguous to the mine permit area. Although the number of broods on the mine permit area has declined since 1993, broods are still reported adjacent to the mine permit area (Thunderbird Wildlife Consulting, Inc. 2003). In Montana, a mountain plover nesting area near the Pryor Mountains in Carbon County was recently lost to bentonite mining (C. Knowles pers. comm. 2003). As many as 51 mountain plovers likely occurred on the Foote Creek Rim wind power project in Carbon County in southeastern Wyoming in 1994. The population there has now declined to about 26 (Johnson
Our consideration of energy development as a listing factor in the proposed rules contributing to the potential decline of the mountain plover was based on the magnitude of anticipated development, as well as on information that existing projects have resulted, or are likely to result, in the modification of habitat required by nesting mountain plovers, and on enhanced opportunities for avian and terrestrial predators. However, because coalbed methane development, although widespread, has not been demonstrated to be detrimental to mountain plovers and because other types of energy development are more limited, we believe the current and anticipated mineral resource development in the
Prior to the passage of the Migratory Bird Treaty Act in 1918, mountain plovers were commercially hunted for food. However, this no longer occurs. Mountain plovers reside on some prairie dog colonies where recreational prairie dog shooting occurs. Although a few mountain plover mortalities have been attributed to shooting, this loss is not thought to be significant. There is no recent evidence that overutilization is a current threat.
Disease-related factors are not known to be a direct threat to the species. However, plovers that breed on prairie dog colonies are indirectly affected through a modification of habitat when an epidemic of sylvatic plague reduces numbers of prairie dogs in a colony (
Mountain plovers eggs and chicks are the most vulnerable life stages to terrestrial and avian predation. Potential avian and terrestrial predators include the prairie falcon (
From 1994 to 2003, grasslands on the Pawnee National Grassland have been burned each year to enhance mountain plover nesting habitat (E. Humphrey, in litt. 2003). All eight nests monitored on the burn sites in 1996 were destroyed by swift fox (F. Knopf, in litt. 1996). Increased predation following burning, as indicated on the Pawnee National Grasslands, may affect nesting success locally in some years, but is not a persistent factor throughout the species' range. Nest predation also occurs in Phillips County, Montana, but is probably not a significant influence on nesting success at this location (Dinsmore 2001).
On December 17, 2002, we completed conferencing under the Act with the BLM for proposals to develop oil and gas resources in the Powder River Basin (M. Long, Service, in litt. 2003). We concluded that predation by mammalian and avian predators would increase with the development as proposed, and we recommended conservation measures to minimize adverse effects. Predation on the small number of nests in the Powder River Basin will not have an impact on the species rangewide.
There is no evidence to indicate at this time that mountain plovers are affected by West Nile virus (Knopf pers. comm.).
Protecting the mountain plover and its habitat is complicated by its wide geographic range, which includes private and public land, and numerous State, Federal, and Tribal Land authorities.
One regulatory mechanism that currently protects the mountain plover is the Migratory Bird Treaty Act (MBTA), which prohibits direct mortality or the destruction of active nests. Other Federal laws that currently provide for conservation of mountain plovers include the Federal Land Policy and Management Act of 1976; National Forest Management Act of 1976; Federal Onshore Oil and Gas Leasing Reform Act; Federal Insecticide, Fungicide, and Rodenticide Act; and Federal Agriculture Improvement and Reform Act. Some Federal agencies such as the BLM or the Forest Service also have adopted policies to require that their actions not contribute to the declining status of a species.
While Federal land ownership is not a guarantee of species conservation, Federal jurisdiction over surface resources can make application of conservation practices easier to implement. The BLM administers 13 percent of the mountain plover habitat (13,000 ha (27,000 ac)) in South Park, Park County, Colorado, where 20 percent or more of the entire mountain plover breeding population is estimated to occur. The BLM recently produced a conservation assessment to help guide implementation of future conservation measures for the mountain plover, including land exchange and consolidation (Granau and Wunder 2001). In that assessment, the Reinecker Ridge State Wildlife Area in the central part of the county was identified as having excellent mountain plover breeding habitat and good conservation potential. It is already under public ownership, primarily through the BLM and Colorado State Land Board (Granau and Wunder 2001).
The National Forest Management Act requires the Forest Service to manage habitats for native species. The Service has coordinated with the Forest Service for over a decade regarding the conservation needs of the mountain plover on the Pawnee National Grassland in Colorado. Mountain plovers are now nearly extirpated from this historic stronghold due to climatic events and changes in grazing management, and restoration of habitat has not been immediately forthcoming. Recently, the Forest Service initiated efforts to improve nesting habitat conditions on the Pawnee (Bedwell, in litt. 2003), although some recovery plans and recovery objectives will not be fully realized for several years (S. Currey, in litt. 2002).
The Forest Service has closed the shooting season for black-tailed prairie dogs on the Thunder Basin National Grassland in Wyoming. While the reason for the closure was recovery of the endangered black-footed ferret, the mountain plover stands to gain habitat as prairie dogs there recover from an epizootic of sylvatic plague.
Two small National Wildlife Refuges (Kern and Pixley) in The San Joaquin Valley and Carrizo Plain provide some natural and cropland habitat for wintering mountain plovers (J. Engler, in litt. 1992, 2003; Knopf and Rupert 1995), although they are not managed specifically for mountain plovers and some of the former potentially suitable grassland and shrubland on Kern National Wildlife Refuge has been overwhelmed with exotic grasses and saltcedar (J. Engler, in litt. 2003). The BLM, California Department of Fish and Game, and The Nature Conservancy have developed a management plan for the Carrizo Plain Natural Area that calls for grazing a 1,850-ha (4,640-ac) BLM allotment by sheep in a manner that would encourage use by mountain plover (BLM
The mountain plover is designated as a threatened species by Mexico (S. Jewell, Service, in litt. 2000) a designation that has begun to provide some awareness of the need for the species' conservation. Mexico currently has no regulations to protect the habitat of the mountain plover. The species also
A Memorandum of Understanding between Canada, Mexico, and the United States was established to enhance coordination and partnerships regarding conservation of wildlife, plants, biological diversity, and ecosystems of mutual interest. The Memorandum of Understanding established the Trilateral Committee for Wildlife and Ecosystem Conservation and Management to develop and implement cooperative conservation projects within the three countries. This Committee has evaluated opportunities for shared conservation efforts on many species, including the mountain plover.
The mountain plover is now classified as threatened in Nebraska, a “species of special interest or concern” in California, Montana, and Oklahoma, a “species in need of conservation” in Kansas, and a “high priority species of concern” in New Mexico (Flath 1984; Sager 1996; E. Hunt, California Department of Fish and Game, in litt. 1990; Nebraska Game and Parks Commission 1992; Oklahoma Department of Wildlife Conservation 1992; Kansas Department of Wildlife and Parks 1992). States other than those identified above have not given the mountain plover any special designation. State listing can encourage State agencies to use existing authorities to conserve species and habitats, stimulate research, and allow redirection of priorities within State natural resource departments.
State agencies within the range of the mountain plover have recently completed “A Multi-State Conservation Strategy for the Black-tailed Prairie Dog in the U.S.” (Luce 2003) to pursue conservation of the black-tailed prairie dog through regulations or provision of incentives to landowners for maintaining prairie dog colonies. The sale of rodenticide within the mountain plover's breeding range has increased in recent years and prairie dog shooting also is popular throughout the range of the mountain plover. No State regulations limit prairie dog poisoning, but prairie dog shooting is regulated in some areas. Colorado has banned prairie dog sport shooting on all public lands and under most circumstances on private lands; Montana has adopted a seasonal closure of prairie dog shooting on public lands, and there are no restrictions on shooting prairie dogs in Wyoming, except on the Thunder Basin National Grassland where shooting is banned.
The State of Colorado, in which a majority of the species' breeding range occurs, has initiated a program to conserve the mountain plover and its habitat, by reducing their vulnerability while they occupy cultivated lands, educating the public, and conserving grasslands that are known or potential breeding habitat (T. Blickensderfer, Colorado Department of Natural Resources, in litt. 2003). In 2003, the CDOW spent $263,000 to conduct research and monitoring on public and private lands occupied by mountain plovers, create an educational video, and implement a “1-877-4PLOVER” number to help reduce the “take” of mountain plovers on cultivated lands in Colorado and contiguous States. The CDOW also has created the Colorado Species Conservation Partnership program. The purpose of the program is to implement conservation actions on private and public lands throughout Colorado to ensure that the status of declining and at-risk species is improved to a level that will prevent their listing under the Act. The CDOW is pursuing mountain plover conservation under this program by recommending that $2 million be dedicated to long-term conservation agreements on private lands that may be occupied by mountain plovers. The initial sign-up for this effort resulted in applications for conservation easements for over 60,704 ha (150,000 ac) of private shortgrass prairie in eastern Colorado that would cost $14,600,000. The CDOW is pursuing partnerships to implement these conservation easements, and is optimistic that more funding will be provided in future years (R. George, in litt. 2003).
The Nebraska Game and Parks Commission working with the Rocky Mountain Bird Observatory has initiated a similar landowner incentive program called the Shortgrass Prairie Partnership (Holliday 2003) and funded in 2003 for over $500,000. It is in the first stages of implementation. While both the Colorado and Nebraska programs are voluntary habitat conservation programs, both wildlife agencies have the authority to initiate, fund, and implement them. These conservation efforts are new but have shown some initial successes and are likely to provide a significant level of protection for the mountain plover, especially in eastern Colorado.
In California, the species is listed as a species of special concern. In the following discussion, we describe the regulatory mechanisms in California on a county-level basis.
Three counties in California are drafting Habitat Conservation Plans (HCPs) with the Service to protect listed and declining species, including the mountain plover. With the development of the Western Riverside County Multiple Species HCP (MSHCP), the County of Riverside and other jurisdictions within Riverside County and California have requested an incidental take permit under section 10(a)(1)(B) under the Act for up to 164 covered species, including the mountain plover. The permit is needed to authorize take of listed species during urban and rural development, and agricultural activities in the approximately 509,904-ha (1.26 million-ac) study area in western Riverside County. The county and other jurisdictions propose in their conservation strategy to conserve, monitor, and manage 85 percent of the potential plover wintering habitat (
Similarly, a San Joaquin County HCP finalized in November 2000 targets the protection of over 40,469 ha (100,000 ac) of habitat for 92 species, including the mountain plover, following adoption of enabling ordinances and/or resolutions by local agencies. A similar HCP for Solano County, which includes protection of potential mountain plover habitat, is being drafted, but is not yet finalized.
In summary, Federal, State, and county agencies and governments have taken significant proactive steps, in the absence of listing, and have shown progress in the conservation of mountain plovers and their habitat.
Because mountain plovers congregate in large flocks on the wintering grounds, they may be more vulnerable to local catastrophic events there. For example, winter surveys in the Imperial Valley in February 2003 were cut short when heavy rains fell and the flocks of mountain plovers disappeared. It is speculated that the birds left their wintering grounds early or moved to less suitable habitats in the Central Valley (F. Knopf, in litt., 2003). The former appears more likely since the CBC for the area (Salton Sea South) had a record low number of plovers, while the Panoche Valley count to the north
Grasshoppers occur throughout the breeding range of the mountain plover and can reach population levels considered a threat to agriculture. The APHIS (2002) has authorized rangeland grasshopper and Mormon cricket control in areas occupied by mountain plovers. Dimilin, malathion, and carbaryl are the identified chemicals when grasshoppers reach economic thresholds (APHIS 2002). Control on private lands can be undertaken by State agencies or private landowners without participation or oversight by APHIS.
The emphasis of the rangeland grasshopper control program is to reduce rather than eliminate grasshoppers, but effects to nontarget insects also occur. The effects of treatment are immediate, and some treatments can depress insect populations into the second year (APHIS 2003). Grasshoppers and other insects are major prey items of mountain plovers, and control may influence mountain plover productivity (Graul 1973, Knopf 1996b, Knopf and Rupert 1996). In conferring under section 7 of the Act on the effects of treatments on mountain plover, we concluded that the application of rangeland grasshopper control as described by APHIS (2002) on mountain plover breeding habitat could result in reduced prey, greater foraging distances, increased chick predation, and reduced survival (W. Knapp, Service, in litt. 2002; R. Williams, Service, in litt. 2003).
In Montana, grasshopper control is authorized to occur in 2003 on both public and private lands (APHIS 2003). Because APHIS, in conference with the Service, has agreed to treatments that will avoid active black-tailed prairie dog colonies and because mountain plovers in Montana are closely associated with black-tailed prairie dog colonies, we believe that treatments are not likely to threaten the plover there. Similarly, in Wyoming, planning is underway to authorize grasshopper control on BLM lands throughout Wyoming. After conferring with the Service, APHIS has agreed to avoid prairie dog colonies and to avoid known mountain plover nesting sites not associated with prairie dog colonies (K. Dickerson, Service, pers. comm. 2003). Control on private lands can be undertaken by State agencies or private landowners without participation or oversight by APHIS or the Service. While control of grasshoppers and other pests on private lands may pose a threat, we do not believe that it is of a magnitude or immediacy that warrants listing the species.
Mountain plovers may be exposed to pesticides while they occupy winter habitat in California (Knopf 1996). In conferring under section 7 of the Act, we concluded that malathion application to control curly-top virus in the Imperial and San Joaquin Valleys would harass some wintering mountain plovers, but the timing and location of treatment was not likely to result in direct exposure, or significant impacts to mountain plover prey (W. White, Service, in litt. 2001b). More recently, the California Department of Fish and Game conducted an assessment of exposure risk in Imperial County, specifically, by comparing mountain plover presence in the Valley with crop types predominately used by them, and the pesticides typically applied to these crops (B. Hosea, California Department of Fish and Game, in litt. 2003; Wunder and Knopf 2003). This information suggests that direct exposure to mountain plovers is reduced because application of pesticides occurs when plovers are not using the fields. For example, insecticides are usually applied to alfalfa fields when the alfalfa is too high to be attractive to mountain plovers. Also, insecticides are not applied while livestock are grazing fields to minimize pesticide exposure to livestock, and pre-planting herbicides are usually incorporated into the soil as a granular form, thus reducing exposure risk. Potential impacts to the mountain plover prey base on the wintering grounds are not known, but also appear to be minimal for reasons cited above (B. Hosea, in litt. 2003). Pesticide exposure by aerial drift is likely due to mosaic cropping patterns, but effects to mountain plovers are unknown.
A review of exposure to organochlorines, selenium, and heavy metals showed that concentrations in mountain plovers were below thresholds that cause population-level effects (A. Archuleta, Service, in litt. 1997). More recently, the Service analyzed pesticide levels in 20 mountain plover eggs collected from Colorado and 4 from Montana. Dichlorodiphenyldichloroethylene (DDE) levels were detected in all eggs; in four eggs levels were above those known to be detrimental to other bird species (K. Dickerson, Service, in litt. 2002). While the levels detected in the mountain plover eggs may have been influenced by prolonged storage prior to analysis, the results nonetheless suggest that mountain plovers may be at risk from organochlorine pesticide exposure (K. Dickerson, Service, pers. comm. 2003). The DDE is a metabolite of dichlorodiphenyltrichloroethane (DDT), known to be responsible for eggshell thinning, and is extremely persistent in the environment. In addition, a recent investigation found a wide disparity in cholinesterase levels between mountain plovers collected in the Central Valley (pesticide use widespread) compared to those from the Carrizo Plain (pesticide use minimal), but no differences in mountain plover body condition (Iko,
The species was proposed in 1999 and 2002 as threatened because the best information available at that time indicated breeding population declines and loss of habitat due to a variety of factors, including agricultural practices, prairie dog declines, and grassland conversion. Research on some of these issues, reanalysis of old data, and new information obtained in the last year lead us to conclude that the threats to the species are such that listing is not warranted.
There is no information to document that the mountain plover population is declining or will be in danger of extinction in the foreseeable future. The declines apparent in the BBS data turned out to be statistically insignificant. The CBC data in California are tremendously variable, but suggest a slow downward trend, whereas surveys on the wintering grounds by researchers do not demonstrate declines. Although there are many specific instances of grassland conversion destroying plover nesting habitat, nesting habitat does not appear to be limiting. Occupied prairie dog habitat is more abundant and more stable than previously thought, providing breeding and nesting habitat for plovers. Nesting appears to be equally successful on croplands as on native grassland. Distribution of plovers across the wintering range appears to depend more on annual farming practices and weather rather than on permanent habitat destruction.
In the last few years, Federal land management agencies and State and county governments have become more actively involved in mountain plover management. In 1994, the Forest Service developed a “Mountain Plover Management Strategy” for the Pawnee National Grassland in Colorado. We believe formalized conservation efforts by the CDOW will improve the status of the mountain plover in Colorado. Other new conservation efforts within the breeding range include the recently-established Federal, State, and private High Plains Partnership; the Department of Defense's Integrated Natural Resource Management Plan for Fort Carson,
Other potential conservation measures for this species include—implementing grazing plans that encourage high grazing intensity in plover nesting areas, revising county bulletins to include specific protective measures for the mountain plover during pesticide application, conducting haying and grazing on existing CRP tracts to manage for the grass height and density required by nesting plovers, providing seeding criteria for new CRP tracts that would encourage establishment of native shortgrass prairie species in preference to taller grasses, and providing incentives to landowners to leave cultivated areas unplanted until plover eggs have hatched and chicks are able to escape from machinery. We have initiated discussions with the NRCS to explore ways, such as through the Conservation Reserve Enhancement Program, that these measures might be implemented on private land.
Following our above analysis and discussion, we have determined that the action of listing the mountain plover as threatened throughout its range as proposed in 1999 and 2002 is not warranted. We have made this determination because the threats to the species, as identified in the previous proposed rules, are not as significant as earlier believed, and current available information does not indicate that the threats to the species and its habitat are likely to endanger the species in the foreseeable future throughout all or a significant portion of its range. Consequently, we withdraw our 1999 and 2002 proposed rules and our 2002 proposed special rule for the mountain plover.
You may request a complete list of all references cited in this document, as well as others, from the Assistant Field Supervisor at the Grand Junction, Colorado, Field Office (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting/public hearing.
The original public meeting document was published in the
The Western Pacific Fishery Management Council will meet on September 23, 2003, at 12 noon Hawaii Standard Time.
The Council meeting will be held via telephone conference call at the Council offices, 1164 Bishop Street, Suite 1400, Honolulu Hawaii 96813; telephone: 808-522-8220; Call in number: 1-808-527-2929 PIN 5785; FAX: 808-522-8226.
Kitty M. Simonds, Executive Director; telephone: 808-522-8220.
The agenda during the Council meeting will include the following items:
A. Discuss the implications of the ruling of U.S. District Court Judge Colleen Kollar-Kotelly, which puts aside the 2002 Biological Opinion and 2002 regulations.
B. Review and discuss sea-turtle take mitigation measures for the U.S. pelagic longline fishery in the Western Pacific Region. Topics may include continued operation of the fishery, regulations, and/or possible emergency actions.
In 2002, the Council developed a regulatory framework adjustment to the Pelagics FMP which was intended to minimize interactions with, and harm to, Pacific sea turtles. These measures stemmed from the non-discretionary Reasonable and Prudent Alternative contained in a Biological Opinion issued in 2001 by NMFS under the Endangered Species Act. Among the various measures implemented were a prohibition on shallow-set longline fishing north of the equator, and a seasonal area closure from 15° N. lat. to the equator, and from 145° W. long. to 180° long. to all fishing by pelagic longline vessels during April and May of each year. These measures have contributed to reductions in sea turtle interactions. However, the southern area closure exacts a significant economic burden on the Hawaii-based longline fleet because it is unable to access these fishing grounds when bigeye and yellowfin tuna stocks are seasonally abundant during April and May. At its 118th meeting in June 2003, the Council took initial action to consider modifying the southern area closure to reduce the economic impact on the longline fishery while continuing to conserve turtles. The Council also directed its staff to continue preparation of a regulatory amendment for potential changes to the Pelagics FMP, including a detailed analysis of a range of modifications to the southern area closure and the impacts of those alternatives on sea turtles, fisheries, and the environment. At its 119th meeting, the Council will discuss the ruling by U.S. District Court Judge Colleen Kollar-Kotelly, and consider the implications of that ruling for proposed amendments to the Pelagics FMP. The Council will also review and discuss sea-turtle take mitigation measures for the U.S. pelagic longline fishery in the Western Pacific Region. These may include continuation of the fishery, developing regulations, and/or possible emergency actions.
Although non-emergency issues not contained in this agenda may come before the Council for discussion, those issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this document and to any issue arising after publication of this document that requires emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808)522-8220 (voice) or (808)522-8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
Farm Service Agency, USDA.
Notice.
This notice announces an official media system for all public notification of important amendments, notices, actions, issues, and activities regarding the United States Warehouse Act (USWA). This warehouse information will include the suspension or revocation of warehouse licenses, fees, draft and final documents and other pertinent information that is of public interest. This action is being taken to increase the public's awareness of the ongoing activities and functions under the USWA.
The Secretary of Agriculture has the authority to make available public information as deemed appropriate for interested parties. The FSA is designating a single website for this type of information to enhance the public's awareness of the activities and functions of the USWA. The following site has been designated as the USWA's official website where all USWA public information can be found:
Also, starting in April 2003, FSA's Kansas City Commodity Office (KCCO) stopped mailing hard copies of public notices and USWA notices to the warehouse trade. To replace the mailing of hard copies, when notices are posted to USWA's official website KCCO will automatically e-mail them to everyone who has enrolled at
Roger Hinkle, United States Warehouse Act Program Manager, Warehouse and Inventory Division, Farm Service Agency (FSA), United States Department of Agriculture, 1400 Independence Avenue, SW., STOP 0553, Washington, DC 20250-0553, telephone (202) 720-7433 FAX: (202) 690-3123, E-Mail:
Forest Service, USDA.
Notice of transfer of land.
On October 23, 2002, the Deputy Assistant Secretary of the Army, and on November 20, 2002, the Southern Regional Forester of the USDA Forest Service, signed a joint order transferring administrative jurisdiction of certain lands from the Department of the Army to the USDA Forest Service.
The order transfers from the Department of the Army to the Department of Agriculture 7,518 acres, more or less, by virtue of the authority vested in the Secretary of the Army and Secretary of Agriculture by the Land Between the Lakes Protection Act of 1998 (16 U.S.C. 460
A copy of the Joint Order, as signed, and Exhibits A and B, which describe the reserved rights and lands being transferred, are set out at the end of this notice.
This order will be effective on September 9, 2003.
A copy of the order of transfer as signed by the Deputy Assistant Secretary of Army and Southern Regional Forester of the USDA Forest Service, is available for public inspection in the Southern Regional Office of the USDA Forest Service, 1720 Peachtree Road, NW., Atlanta, GA 30309.
Michael O. Lange, USDA Forest Service, 1720 Peachtree Road, NW., Atlanta, GA. 30309, (404) 347-2990.
By virtue of the authority vested in the Secretary of the Army and in the Secretary of Agriculture by the Land Between the Lakes Protection Act of 1998 (16 U.S.C. 340
(1) The lands under the jurisdiction of the Department of the Army identified in Exhibit A, attached hereto and made a part hereof, are hereby transferred from the Jurisdiction of the Secretary of the Army to the jurisdiction of the Department of Agriculture, subject to outstanding rights or interests of record, and flowage easement rights over the portion of the premises below elevation 378 mean sea level, as set out in Exhibit B. These lands were acquired by the United States in connection with the Barkley Dam and Lake Barkley Project and are within the boundary of the Land Between the Lakes National Recreation Area, Kentucky and Tennessee.
(2) Pursuant to section 512(b) of the aforesaid Land Between the Lakes Protection Act, the Department of the Army lands transferred to the Secretary of Agriculture by this order have the status of land acquired under the Act of March 1, 1911 (commonly called the “Weeks Act”) (16 U.S.C. 515
This order will be effective as of the date of publication in the
A tract of land lying along the westerly shore of Lake Barkley, situated in Lyon and Trigg Counties, Kentucky, and in Stewart County, Tennessee, the boundary of which is described as follows:
Beginning at a point located on the 378-foot contour (mean sea level) as it lies along the Westerly shore of Lake Barkley. Said point having KY State Plane Coordinates: N 248,750; E 1,282,136 and identified as Corner 2CN-8 on TVA Map titled “Land Between The Lakes Reservation”, drawing number 421B511-6, dated December, 1968. Thence leaving said contour and proceeding N 45°E
Thence southerly along said 359-foot contour (msl) as it lies along the Westerly shore of Lake Barkley to a point intersecting the easterly edge of an old road (TN State Plane Coordinates: N 782,160; E 1,445,870), said point being along the westerly bank of Rawls Pond and lying approximately 30 feet east of a Sandstone Bluff;
Thence Southerly along the east edge of said road 0.35 mile to a 6″ diameter Well Casing (TN SPC: N 780,439; E 1,446,413);
Thence 5 feet east to a fence; thence Southerly along and with said fence 820 feet to a drainage ditch;
Thence N 65°37′E 675 feet to a 26″ diameter Red Oak in an existing fence line (TN SPC: N 779,902; E 1,447,025);
Thence Southeasterly along and with said fence approximately 0.6 mile to a point intersecting the South Boundary of Land Between the Lakes (LBL), said point marked by a concrete monument (Corner 10PS-1, TN SPC: N 777,592; E 1,448,808), as shown on TVA Map title “Land Between the Lakes Reservation”, drawing number 421B511-1, dated December, 1968;
Thence Westerly along the South Boundary of LBL approximately 30 feet to a point intersecting the 378-foot contour (msl);
Thence along said 378-foot contour (msl) as it meanders in a northerly direction along the westerly shore of Lake Barkley to the Point of Beginning, said tract of land containing 7,518 acres, more or less.
The right is reserved as may be necessary for the operation of the Barkley Dam and Lake Barkley Project to occasionally overflow, flood, and submerge that portion of the lands described in the attached Exhibit A lying below elevation 378 mean sea level, and to maintain mosquito control in connection with the operation and maintenance of the Barkley Dam and Lake Barkley Project as authorized by the Act of Congress approved 3 September 1954 (Public Law 780, 83rd Congress, 2d Session) and the continuing right to clear and remove any brush, debris, and natural obstruction which, in the opinion of the representative in charge, may be detrimental to the project; provided that no structure for human habitation shall be constructed or maintained on the land, and further provided that no other structure shall be constructed or maintained on the land and no excavation or filling may be performed except as may be approved in writing by said representative of the United States in charge of the project.
Rural Business-Cooperative Service, USDA.
Proposed collection, comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's (RBS) intention to request an extension for a currently approved information collection in support of the Rural Cooperative Development Grants program.
Comments on this notice must be received by November 7, 2003, to be assured of consideration.
Marc Warman, Program Leader, Cooperative Services, Rural Business-Cooperative Service, U.S. Department of Agriculture, Stop 3250, Room 4016, South Agriculture Building, 1400 Independence Avenue, SW., Washington, DC 20250-3250. Telephone (202) 690-1431.
Copies of this information collection can be obtained from Brigitte Sumter, Regulations and Paperwork Management Branch, at (202) 692-0042.
Import Administration, International Trade Administration, Department of Commerce.
Request for public comments.
The Department of Commerce is requesting comments on the appropriateness of deducting section 201 duties and countervailing duties from gross unit price in order to determine the applicable export price or constructed export price used in antidumping duty calculations.
To be assured consideration, initial comments must be received no later than thirty days from the date of publication of this notice. Rebuttal comments must be received no later than forty-five days from the date of publication of this notice.
Submit comments to James J. Jochum, Assistant Secretary for Import Administration, U.S. Department of Commerce, Central Records Unit, Room
Becky Erkul, Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, at (202) 482-1277.
Several parties have advocated that the Department deduct countervailing duties, as well as duties imposed under section 201 of the Trade Act of 1974 (section 201 duties), from export price (EP) and constructed export price (CEP) in calculations of dumping margins pursuant to sections 772(c)(2)(A) and 772(d) of the Tariff Act of 1930, as amended (the Act).
Section 772(c)(2)(A) of the Act requires that the Department deduct from EP and CEP any United States import duties included in the price. This statutory deduction existed prior to the passage of the Uruguay Round Agreements Act (URAA), and the URAA did not modify it in any respect. In addition, section 772(d) of the Act requires the Department to deduct U.S. selling expenses from CEP. Once again, there was a similar statutory deduction for U.S. selling expenses under the pre-URAA antidumping law.
The Department is seeking comments on the appropriate treatment of section 201 duties and countervailing duties under these provisions in antidumping duty calculations.
Parties wishing to comment should file a signed original and six copies of each set of initial and rebuttal comments. All comments will be available for public inspection and photocopying in the Import Administration's Central Records Unit, Room B-099, between the hours of 8:30 a.m. and 5 p.m. on business days. Each person submitting a comment should include the commenter's name and address, and give reasons for any recommendations. In order to ensure timely and complete distribution of comments, the Department recommends the submission of initial and rebuttal comments in electronic form to accompany the required paper copies. Comments filed in electronic form should be submitted on a DOS formatted 3.5″ diskette, Iomega Zip disk, or Compact Disc (CD-R or CD-RW).
Comments received in electronic form will be made available to the public in Portable Document Format (PDF) on the Internet at the IA Web site at the following address:
Any questions concerning file formatting, document conversion, access on the Internet, or other electronic filing issues should be addressed to Andrew Lee Beller, Import Administration Webmaster, at (202) 482-0866, e-mail address
After reviewing all comments and rebuttal comments, the Department will determine if a public hearing is warranted, and, if so, will announce a place and time for that hearing.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain corrosion resistant carbon steel flat products (CORE) from Canada in response to a request by petitioners, Bethlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation. This review covers shipments of this merchandise to the United States during the period of August 1, 2001, through July 31, 2002.
We have preliminarily determined that U.S. sales have been made below normal value (NV). If these preliminary results are adopted in our final results, we will instruct the U.S. Bureau of Customs and Border Protection (BCBP) to assess antidumping duties based on the difference between the export price (EP) or constructed export price (CEP) and the NV. Interested parties are invited to comment on these preliminary results.
September 9, 2003.
Christian Hughes or Elfi Blum-Page, Office of Antidumping/Countervailing Duty Enforcement VII, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-0190 or (202) 482-0197, respectively.
The Department published the antidumping duty order on CORE from Canada on August 19, 1993 (58 FR 44162). On August 6, 2002, the Department published a notice of opportunity to request administrative review of the antidumping duty order on CORE from Canada (67 FR 50856). On August 30, 2002, the Department received a timely request for an administrative review of the antidumping duty order on CORE from petitioners. On September 25, 2002, we published a notice initiating an administrative review of CORE for Dofasco Inc. (Dofasco) and Stelco Inc. (Stelco).
On February 25, 2003, the Department extended the deadline for the preliminary results of this antidumping duty administrative review from May 3, 2002, until no later than August 31, 2003. Since the 120-day extension falls on a weekend and the next business day is a holiday, the due date is September 2, 2003.
On July 3, 2003, the Department rescinded the antidumping duty administrative review with respect to Stelco because petitioners withdrew their request for the review and no other party had requested a review of Stelco.
The product covered by this antidumping duty order is certain corrosion-resistant steel, and includes flat-rolled carbon steel products, of rectangular shape, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating, in coils
Although verification in this administrative review was not required under section 351.307(b)(1)(v) of the Department's regulations, the Department conducted verification of certain sales information provided by Dofasco using standard verification procedures, on-site inspection of the manufacturer's facilities, and the examination of relevant sales and financial records. Our verification results are outlined in the public and proprietary versions of the Memorandum to File: Report on the Verification of Dofasco Inc. in the Ninth (01/02) Antidumping Duty Administrative Review for Certain Corrosion-Resistant Carbon Steel Flat Products from Canada, dated August 27, 2003 (
For purposes of this review, we have collapsed Dofasco and Sorevco Inc. (Sorevco) and have treated them as a single respondent, as we have done in prior segments of the proceeding.
In accordance with section 771(16) of the Tariff Act of 1930, as amended (the Act), we considered all products produced by the respondent that are covered by the description in the
To determine whether sales of subject merchandise to the United States were made at less than NV, we compared the EP or the CEP to NV, as described in the Export Price and
We used EP when the subject merchandise was sold, directly or indirectly, to the first unaffiliated purchaser in the United States prior to importation, and CEP was not otherwise warranted by facts on the record. Based on evidence on the record, we conclude that the long-term contract sales are made by Dofasco's U.S. affiliate, Dofasco U.S.A. (DUSA), and should be classified as CEP sales.
Dofasco makes certain sales in the United States through DUSA. The sales involving DUSA are either made through long-term contracts or are spot sales. Evidence on the record indicates that, for spot sales, while DUSA is involved, the sales are made by Dofasco. We are treating these sales as EP sales. However, based on evidence on the record, we conclude that the long-term contract sales made by DUSA should be classified as CEP sales.
The Department calculated EP and CEP for Dofasco based on packed prices to customers in the United States. We made deductions from the starting price, net of discounts and rebates, for movement expenses (foreign and U.S. movement, U.S. Customs duty and brokerage, and post-sale warehousing) in accordance with section 772(c)(2) of the Act and section 351.401(e) of the Department's regulations. In addition, for CEP sales, in accordance with sections 772(d)(1) and (2) of the Act, we deducted from the starting price credit expenses, indirect selling expenses, including inventory carrying costs, commissions, royalties, and warranty expenses incurred in the United States and Canada associated with economic activities in the United States. As in prior reviews, certain Dofasco sales have undergone minor further processing in the United States as a condition of sale to the customer. The Department has deducted the price charged to Dofasco by the unaffiliated contractor for this minor further processing from gross unit price to determine U.S. price.
As provided in section 351.401(i) of the Department's regulations, we determined the date of sale based on the date on which the exporter or producer
The Department determines the viability of the home market and the comparison market by comparing the aggregate quantity of home market and U.S. sales. We determined that Dofasco's quantity of sales in its home market exceeded five percent of its sales to the United States of CORE.
We used sales to affiliated customers only where we determined such sales were made at arms-length prices (
The Department disregarded sales below cost of production (COP) in the last completed review.
We compared sales of the foreign like product in the home market with model-specific COP figures for the POR. In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the costs of materials and fabrication employed in producing the foreign like product, plus SG&A expenses and all costs and expenses incidental to placing the foreign like product in packed condition and ready for shipment. In our sales-below-cost analysis, we used home market sales and COP information provided by Dofasco in its questionnaire responses.
We made adjustments to COP and CV to reflect appropriately Dofasco's expenses associated with painting services provided by an affiliate. We made further adjustments by using Dofasco's fiscal year 2002 financial statements for general & administrative (G&A) expenses.
We compared the weighted-average COPs to home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. In determining whether to disregard home market sales made at prices below the COP, we examined whether such sales were made (1) within an extended period of time in substantial quantities, and (2) at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade, in accordance with section 773(b)(1)(A) and (B) of the Act. On a product-specific basis, we compared the COP to home market prices, less any movement charges, discounts, and direct and indirect selling expenses.
Pursuant to section 773(b)(2)(c) of the Act, where less than 20 percent of a respondent's sales of a given model were at prices less than COP, we did not disregard any below-cost sales of that model because the below-cost sales were not made in substantial quantities within an extended period of time. Where 20 percent or more of a respondent's sales of a given model were at prices less than COP, we disregarded the below-cost sales because they were made in substantial quantities within an extended period of time, in accordance with sections 773(b)(B) and (c) of the Act. Because we compared prices to POR-average costs, we also determined that the below-cost prices did not permit the recovery of costs within a reasonable period of time.
In accordance with section 773(a)(4) of the Act, we used constructed value (CV) as the basis for NV when there were no above-cost contemporaneous sales of identical or similar merchandise in the comparison market. We calculated CV in accordance with section 773(e) of the Act. We included the cost of materials and fabrication, selling, general and administrative expenses (SG&A), and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the foreign country. For selling expenses, we used the weighted-average home market selling expenses.
In accordance with section 773(a)(1)(B)(i) of the Act, where possible, we based NV on sales at the same LOT as the U.S. price.
For those product comparisons for which there were sales at prices above COP, we based NV on home market prices to affiliated (when made at prices determined to be arms-length) or unaffiliated parties, in accordance with section 351.403 of the Department's regulations. Home market starting prices were based on packed prices to affiliated or unaffiliated purchasers in the home market net of discounts and rebates. We made adjustments, where applicable, for packing and movement expenses, in accordance with sections 773(a)(6)(A) and (B) of the Act. We also made adjustments for differences in cost attributable to differences in physical characteristics of the merchandise pursuant to section 773(a)(6)(C)(ii) of the Act and for circumstance-of-sales (COS) differences in accordance with 773(a)(6)(C)(iii) of the Act and section 351.410 of the Department's regulations. For comparisons to EP, we made COS adjustments to NV by deducting home market direct selling expenses (credit, warranties, and royalties) and adding U.S. direct selling expenses. For comparison to CEP, we made COS adjustments by deducting home market direct selling expenses pursuant to section 773(a)(6)(C)(iii) of the Act and section 351.410 of the Department's regulations. We offset commissions paid on sales to the United States by the lesser of U.S. commissions or comparison (home) market indirect selling expenses.
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determined NV based on sales in the comparison market at the same LOT as U.S. sales. The NV LOT is the level of the starting-price sale in the comparison market or, when NV is based on CV, the level of the sales from which we derive SG&A and profit. For EP, the U.S. LOT is also the level of the starting-price sale, which is usually
To determine whether NV sales are at a different LOT than EP or CEP, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in the levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act ( the CEP offset provision).
In the current review, Dofasco claimed that sales in both the home market and the United States market were made at three LOTs. As discussed in detail in
We made currency conversions pursuant to section 351.415 of the Department's regulations at the rates certified by the Federal Reserve Bank.
We preliminarily determine that the following dumping margin exists:
The Department shall determine, and the BCBP shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate appraisement instructions directly to the BCBP within 15 days of publication of the final results of review. Furthermore, the following deposit rates will be effective with respects to all shipments of CORE from Canada entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided for by section 751(a)(2)(c) of the Act: (1) For Dofasco, the cash deposit rate will be the rate established in the final results of this review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will be the company-specific rate established for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the subject merchandise; and (4) for all other producers and/or exporters of this merchandise, the cash deposit rate shall be the all other rate established in the LTFV investigation, which is 61.88 percent.
Pursuant to 19 section 351.224(b) of the Department's regulations, the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of publication of this notice. Pursuant to section 351.309 of the Department's regulations, interested parties may submit written comments in response to these preliminary results. Case briefs are to be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, are to be submitted no later than five days after the time limit for filing case briefs. Parties who submit arguments in this proceeding are requested to submit with the argument: (1) a statement of the issues, and (2) a brief summary of the argument. Case and rebuttal briefs must be served on interested parties in accordance with section 351.303(f) of the Department's regulations.
Also, pursuant to section 351.310 of the Department's regulations, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs. Parties will be notified of the time and location. The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief, not later than 120 days after publication of these preliminary results, unless extended.
This notice serves as a preliminary reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on petroleum wax candles from the People's Republic of China (PRC) in response to requests from Dongguan Fay Candle Co. (Fay Candle), a PRC producer and exporter of subject merchandise, and its U.S. importers, TIJID, Inc. (TIJID) (d/b/a DIJIT Inc.), and Palm Beach Home Accents, Inc. (Palm Beach), Wal-Mart Stores, Inc. (Wal-Mart), Qingdao Kingking Applied Chemistry Co., Ltd. (Qingdao Kingking), and petitioner, the National Candle Association (NCA). The review covers the period August 1, 2001, through July 31, 2002.
We preliminary determine that sales have been made below normal value (NV). The preliminary results are listed below in the section titled “Preliminary Results of Review.” If these preliminary results are adopted in our final results, we will instruct the U.S. Bureau of Customs and Border Protection (Customs) to assess antidumping duties on imports into the United States of subject merchandise exported by the respondents. Interested parties are invited to comment on these preliminary results. (See the “Preliminary Results of Review” section of this notice.)
September 9, 2003.
Sally C. Gannon or Mark Hoadley, Office of AD/CVD Enforcement VII, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, D.C. 20230; telephone: (202) 482-0162 or (202) 482-3148, respectively.
The Department published in the
In accordance with section 777A(c)(2) of the Act, the Department determined that it was not practicable to determine individual weighted-average dumping margins for each exporter/producer for which a review was requested. Therefore, on October 11, 2002, the Department requested information concerning the quantity and value (Q&V) of sales to the United States from all 108 companies. The Department received responses to its request from 17 companies, including the two companies that had requested reviews of their own exports.
The Department issued complete questionnaires to all five mandatory respondents. On December 18, 2002, the Department received Fay Candle's and Qingdao Kingking's responses to the Department's section A-E questionnaires. On March 24, 2003, the Department received Smartcord's response to the Department's section A questionnaire. Smartcord failed to submit its response to sections B-E of the Department's questionnaire. Amstar and Jiangsu Holly failed to submit responses to any section of the Department's questionnaires.
Due to the complexity of the selection process and of analyzing the numerous questionnaire responses, on March 26, 2003, the Department determined that it was not practicalbe to complete the preliminary results of this review within the statutory time limit. Consequently, in accordance with section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations, the Department extended the deadline for completion of the preliminary results of the administrative review by 120 days,
On June 6, 2003, the Department issued supplemental questionnaires to Fay Candle and Qingdao Kingking. On June 20, 2003, the Department issued its second supplemental questionnaire to Qingdao Kingking. On June 24, 2003, the Department issued its second supplemental questionnaire to Fay Candle. Both Fay Candle and Qingdao Kingking requested an extension of time to respond to the Department's supplemental questionnaires, which the Department granted.
On July 9, 2003, the Department received Fay Candle's response to the Department's first supplemental questionnaire. On July 11, 2003, the Department received Fay Candle's response to the Department's second supplemental questionnaire. On July 11, 2003, the Department received Qingdao Kingking's response to the Department's first and second supplemental questionnaires. On July 29, 2003, the Department issued its third supplemental questionnaire to Qingdao Kingking. On July 30, 2003, the Department issued its third supplemental questionnaire to Fay Candle, and the petitioner submitted publicly available information for consideration in valuing the factors of production for the preliminary calculations.
On August 1, 2003, Qingdao Kingking and Fay Candle submitted publicly available information for consideration in valuing the factors of production for the preliminary calculations. On August 4, 2003, Fay Candle requested an extension of time to respond to the Department's third supplemental questionnaire. On August 11, 2003, the Department granted an extension of time to August 13, 2003, to Fay Candle to respond to question 2 of the Department's third supplemental questionnaire, and to August 14, 2003 for the remaining questions. On August 12, 2003, the Department received Qingdao Kingking's response to the Department's third supplemental questionnaire. On August 13, 2003, the Department received Fay Candle's response to question 2 of the third supplemental questionnaire. On August 14, 2004, the the Department received the response to the remaining questions of the third supplemental questionnaire. On August 21, 2003, the Department received comments from petitioner on the relationship between Fay Candle and its U.S. importers. On August 26, 2003, petitioner submitted information concerning what it termed the “involuntary bankruptcy of TIJID, Inc.,” for the Department to consider in examining the relationship between TIJID and Fay Candle.
The products covered by this order are certain scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks. They are sold in the following shapes: Tapers, spirals, and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax-filled containers. The products were classified under the Tariff Schedules of the United States (TSUS) item 755.25, Candles and Tapers. The products are currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) item 3406.00.00. Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this proceeding remains dispositive.
The period of review (POR) is August 1, 2001, through July 31, 2002.
On September 25, 2002, the Department published its
As part of its standard procedure in administrative reviews, the Department reviewed data on entries under the order during the POR from Customs. Our review of this data revealed that one party, Li & Fung, which claimed it was merely a buying agent for the subject merchandise, may have, in fact, exported the subject merchandise to the United States during the POR. On November 22, 2002, the Department issued a letter to Li & Fung, asking it to clarify whether it had exports of petroleum wax candles during the POR. On February 10, 2003, Li & Fung submitted a letter and attachments to the Department stating that it neither produced, sold, nor exported the subject merchandise during the POR, but that it merely acted as a buying agent.
Pursuant to our regulations, the Department may rescind an administrative review if the Secretary concludes that, during the period covered by the review, there were no entries, exports, or sales of the subject merchandise.
With respect to Li & Fung, information obtained from Customs does not substantiate Li & Fung's claim that it was merely a buying agent during the POR.
As further discussed below, pursuant to sections 776(a)(2)(A) and (B) and section 776(b) of the Act, the Department determines that the application of total adverse facts available (AFA) is warranted for the PRC entity, including the following companies: Mandatory respondents
The latter five companies are: Simon Int'l Ltd.; Taizhou Int'l Trade Corp.; Universal Candle Co., Ltd.; Suzhou Ind'l Park Nam Kwong Imp & Exp Co. Ltd. (Zhongxing City, Conghuan Rd., Suzhou); and Candle World Industrial Co.
Smartcord, Amstar, and Jiangsu Holly, all mandatory respondents, failed to respond to all or part of the Department's questionnaire for this POR. Smartcord responded to section A of the Department's questionnaire, but then failed to submit its response to sections B-E of the Department's questionnaire. Amstar and Jiangsu Holly failed to respond to any section of the Department's initial questionnaire. Li & Fung, who did not provide a Q&V response, reported no shipments, but the Department has been unable to confirm this claim.
Sections 776(a)(2)(A) and 776(a)(2)(B) of the Act provide for the use of facts available when an interested party withholds information that has been requested by the Department, or when an interested party fails to provide the information requested in a timely manner and in the form required. These 97 companies (listed in Attachment I), for the reasons detailed above, failed to provide information explicitly requested by the Department; therefore, we must resort to the facts otherwise available. Because these companies did not respond to the Department's questionnaire, sections 782(d) and (e) of the Act are not applicable. In addition, section 782(c)(1) does not apply because these parties did not indicate that they were unable to submit the information required by the Department. Section 776(b) of the Act provides that, in selecting from among the facts available, the Department may use an inference that is adverse to the interests of the respondent, if it determines that a party has failed to cooperate to the best of its ability. In applying the facts otherwise available, the Department has determined that an adverse inference is warranted pursuant to section 776(b) of the Act.
The Department finds that, by not providing the necessary responses to the A&V letters or questionnaires issued by the Department, these companies have failed to cooperate to the best of their ability. None of these companies cited any reason for their failure to respond. Neither did they indicate that they were having any difficulties in responding to the questionnaires or request assistance or clarification about the questionnaires. Without this information, the Department cannot calculate margins for these companies nor determine that there was merit for a separate rate. This information was in the sole possession of the respondents, and could not be obtained otherwise. Thus, the Department is precluded from calculating margins for these companies or determining eligibility for separate rates. Therefore, in selecting from the facts available, the Department determines that an adverse inference is warranted. Because the 97 companies listed in Attachment I did not demonstrate their eligibility for a separate rate, we have preliminarily determined that they are subject to the PRC-wide rate. In accordance with sections 776(a)(2)(A) and (B), and section 776(b) of the Act, we are applying total AFA to the PRC entity, which includes Smartcord, Amstar, Jiangsu Holly, and the 94 other non-cooperating companies (
Section 776(c) of the Act provides the following when the Department relies on the facts otherwise available:
When the administering authority or the Commission relies on secondary information
(Emphasis added.)
With respect to Smartcord, Amstar, Jiangsu Holly and the 94 other non-cooperating companies, we are applying the highest calculated rate from the current administrative proceeding as AFA. This rate, the rate calculated for Fay Candle, is also the highest rate from any other segment of this administrative proceeding. Accordingly, we find that it is unnecessary to corroborate the dumping margin calculated for Fay Candle in this administrative review because this rate was based on, and calculated from, information obtained in the course of the administrative review.
Furthermore, unlike other types of information, such as input costs or selling expenses, there are no independent sources for calculated dumping margins. The only source for calculated margins is administrative determinations. Thus, in an administrative review, if the Department chooses as total AFA a calculated dumping margin from the current or a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period.
Two PRC producers/exporters, Shandong, Jiaye and Shanghai charming, responded to the Department's Q&V letter, as well as the Department's Section A questionnaire (which includes eligibility for a separate rate), but were not selected as mandatory respondents. Based on our analysis, these two companies have demonstrated their eligibility for a separate rate (
With respect to five PRC producers/exporters who responded to the Department's A&V letter claiming that they had no shipments during the POR, the Department is preliminary rescinding this review, in part, with respect to the four producers/exporters for which the Department was able to confirm their claim, as follows: Dalian Hanbo, Premier Candle, ZHS, and Zen Continental (
As provided in section 782(i) of the Act, we intend to verify all company information relied upon in making our final results.
Fay Candle, Qingdao, Kingking, Shandong Jiaye, and Shanghai Charming have all requested a separate, company-specific rate.
With respect to the absence of
The following laws, which have been placed on the record of this review, indicate a lack of
With respect to the absence of
With regard to Qingdao Kingking, its vice general manager has the right to negotiate prices and enter into contracts on behalf of Qingdao Kingking. There is no evidence that this authority is subject to any level of governmental approval. In addition, there are no restrictions on the use of Qingdao Kingking's export earnings. Qingdao Kingking reported that its general manager is selected by the board of directors, and subordinate management personnel are selected by the general manager. Qingdao Kingking is not required to notify the government about its management selection process.
With regard to Fay Candle, Fay Candle's chief executive officer (CEO) has the authority to enter into contracts on behalf of Fay Candle, and it sets prices pursuant to negotiations with its importers. There is no evidence that this authority is subject to any level of governmental authority. In addition, other than the requirement that hard currency earnings from exports be repatriated through an account in a state bank, there are no restrictions on the use of Fay Candle's export earnings. Fay Candle reported that the entrepreneurial investors who own the company appoint the CEO, and the CEO selects subordinate management personnel. Fay Candle provides identification of company officials to local government authorities for contact purposes only; it is not required to notify the government about its management selection process.
With regard to Shandong Jiaye, its export sales manager has the right to negotiate prices, while the general manager has the authority to enter into contracts on behalf of Shandong Jiaye. There is no evidence that this authority is subject to any level of governmental authority. In addition, there are no restrictions on the use of Shandong Jiaye's export earnings. Shandong Jiaye reported that its board of directors selects its general manager and the general manager selects subordinate management personnel. Shandong Jiaye provides the name of the general manager to the government for purposes of receiving its business license; however, it is not required to notify the government about its management selection process.
With regard to Shanghai Charming, its general manager has the authority to set the price and to enter into contracts on behalf of Shanghai Charming. There is no evidence that this authority is subject to any level of governmental authority. In addition, there are no restrictions on the use of Shanghai Charming's export earnings. Shanghai Charming reported that its management is appointed by its parent company, a non-Chinese company. Shanghai Charming is not required to notify the government about its management selection process.
Consequently, because evidence on the record indicates an absence of government control, both in law and in fact, over Fay Candle's, Qingdao Kingking's, Shandong Jiaye's, and Shanghai Charming's export activities, we preliminarily determine that these companies have met the requirements for receiving a separate rate for purposes of this review.
The Department has identified a significant discrepancy between the quantity and value data Qingdao Kingking reported with the quantity and value information that the Department identified through Customs data queries. The Department requested an explanation from Qingdao Kingking in its June 6, 2003, supplemental and received Qingdao Kingking's response in its July 11, 2003, submission; however, in this response, Qingdao Kingking did not adequately explain why there could be such a significant discrepancy. The Department also contacted Customs about this issue and will be working closely with it to determine the cause of this discrepancy. In addition, the Department will further examine this issue for the final results by requesting additional information from Qingdao Kingking and addressing the issue at verification.
Respondent Fay Candle claimed in the questionnaire responses that it is affiliated with its U.S. importers, TIJID and Palm Beach. In its section A questionnaire response, Fay Candle submitted evidence to the Department concerning its corporate structure, ownership, and relationship to its U.S. importers, TIJID and Palm Beach. The evidence on the record regarding Fay Candle's relationship with TIJID and Palm Beach does not demonstrate that TIJID and Palm Beach were affiliated with Fay Candle under section 771(33) of the Act during the POR. For a full discussion of this issue (which includes business proprietary details),
Fay Candle and Qingdao Kingking reported various dates as the basis for their dates of sale. Although the Department maintains a presumption that invoice date is the date of sale (19 CFR 351.401(i)), “[i]f the Department is presented with satisfactory evidence that the material terms of sale are finally established on a date other than the date of invoice, the Department will use that alternative date as the date of sale.''
With regard to Fay Candle, it reported two distinct dates of sale based on the type of sale. According to Fay Candle, the terms of the sales transactions become fixed at different stages based on the type of sale. After examining the documentation placed on the record by Fay Candle, the Department preliminarily determines that the invoice date is the appropriate date of sale to use for Fay's EP sales in these preliminary results. Because the information regarding Fay Candle's dates of sale is mostly business proprietary, the Department's full analysis of Fay Candle's dates of sale can be found in the
To determine whether sales of the subject merchandise by Fay Candle and Qingdao Kingking were made at prices below normal value (NV), we compared the export price (EP) to the NV, as described in the “Export Price” and “Normal Value” sections of this notice, below.
As discussed above in the “Treatment of Fay Candle and Its U.S. Importers, TIJID and Palm Beach” section, and as discussed in the
For companies located in NME countries, section 773(c)(1) of the Act provides that the Department shall determine NV using a factors-of-production (FOP) methodology if (1) the merchandise is exported from an NME country, and (2) available information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 772(a) of the Act.
In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country. Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. None of the companies contested such treatment in these reviews. Accordingly, we have applied surrogate values to the factors of production to determine NV.
The Department calculated factors for approximately 100 inputs for this review. Except as noted below, we calculated all raw material inputs and packing using contemporaneous Indian import data obtained from the World Trade Atlas, which notes that its data was obtained from the Ministry of Commerce of India. Consistent with our policy, we excluded from this data imports into India from NME countries and countries providing their exporters with non-specific export subsidies.
We valued several factors—depending on the respondent—and particular freight items at the average of the market economy prices actually paid, because these were purchased from market economy countries, in market economy currencies, and in meaningful quantities.
• To value wax, we used the average Indian price for paraffin wax derived from rates published in
• To value diesel oil, we used Indian commercial prices for diesel fuel published in the first quarter 2001 edition of the International Energy Agency's
• To value electricity, we used the annual report of an Indian chemical producer, National Peroxide Ltd. Because this data was not contemporaneous with the POI, we adjusted the rate for inflation.
• Water was valued using the publicly available water tariff rates reported in the second
• For labor, consistent with section 351.408(c)(3) of the Department's regulations, we used the PRC regression-based wage rate at Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised September 2002 (see
• To value truck freight expenses we used nineteen Indian price quotes as reported in the February 14, 2000 issue of
• To value factory overhead, selling, general, and administrative expenses, and profit we used information reported in the January, 2001
For purposes of these preliminary results, we made currency conversions in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank of New York.
As a result of our review, we preliminarily determine the dumping margins for the period of August 1, 2001 through July 31, 2002, to be as follows:
The following deposit rates will be effective upon publication of the final results of this administrative review for all shipments of petroleum wax candles from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(1) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates established in the final results of this review; (2) for previously reviewed PRC and non-PRC exporters with separate rates, the cash deposit rates will be the company-specific rates established for the most recent period; (3) for all other PRC exporters, the rate will be the PRC-wide rate, which is now 95.74 percent; and (4) for all other non-PRC exporters of subject merchandise from the PRC, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that exporter. These deposit rates, when imposed, shall remain in effect until publication of the final results of the next administrative review.
Upon completion of this administrative review, the Department will determine, and Customs shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated an exporter/importer-specific assessment rate for merchandise subject to this review. The Department will issue appropriate assessment instructions directly to Customs within 15 days of publication of the final results of review. If these preliminary results are adopted in the final results of review, we will direct Customs to assess the resulting assessment rates, where appropriate, on the entered Customs quantity for the subject merchandise for each of the importer's entries during the review period.
The Department will disclose calculations performed within five days of the date of publication of this notice to the parties of the proceedings in this review in accordance with 19 CFR351.224(b). Any interested party may request a hearing within 30 days of publication of this notice in accordance with section 351.310(c) of the Department's regulations. The Department will notify interested parties of the hearing date of this proceeding, if one is requested, and such hearing will be held at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, D.C. 20230. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the
Unless otherwise notified by the Department, interested parties may submit case briefs within 30 days of the date of publication of this notice in accordance with section 351.309(c)(ii) of the Department's regulations. As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Rebuttal briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the case brief is filed. If a hearing is held, the presentations will be limited only to arguments raised in the case and rebuttal briefs. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the schedule time. The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in the briefs, within 120 days from the date of publication of these preliminary results, unless the time limit is extended.
This notice also serves as preliminary reminder to importers of their responsibility under 351.402(f)(2) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent
This administration review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Companies Listed in the
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results of Countervailing Duty Administrative Review.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on stainless steel sheet and strip in coils from the Republic of Korea for the period January 1, 2001, through December 31, 2001. For information on the net subsidy for the reviewed companies, see the “Preliminary Results of Review” section of this notice. Interested parties are invited to comment on these preliminary results. (
September 9, 2003.
Carrie Farley or Darla Brown, Office of AD/CVD Enforcement VI, Group II, Import Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-2786.
On August 6, 1999, the Department published in the
In accordance with 19 CFR 351.213(b), this review covers only those producers or exporters for which a review was specifically requested. The companies subject to this review are INI and BNG. This review covers nine programs.
For purposes of this review, the products covered are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to this review is classified in the
Excluded from the scope of this order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (
The Department has determined that certain specialty stainless steel products are also excluded from the scope of this order. These excluded products are described below:
Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of between 0.002 and 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this order. These include stainless steel strip in coils used in the production of textile cutting tools (
In the previous administrative review, covering the period calendar year 2000, we acknowledged that Sammi's name was changed to BNG in March 2002. However, we declared that we were not conducting any type of entity review or successor-in-interest test in that review. We stated that we would examine the facts related to Sammi in the 2001 administrative review (
On December 6, 2000, Inchon became Sammi's majority shareholder when it completed its purchase of 68.4 percent of Sammi's shares. In the instant administrative review, we are conducting the “same person test” to determine whether Sammi was the same entity before and after Inchon's purchase of the majority of Sammi's shares.
In making the “person” determination, where appropriate and applicable, we analyze factors such as (1) continuity of general business operations, including whether the successor holds itself out as the continuation of the previous enterprise, as may be indicated, for example, by use of the same name, (2) continuity of production facilities, (3) continuity of assets and liabilities, and (4) retention of personnel.
Regarding the first criterion, after Inchon's majority purchase of Sammi's shares, Sammi's general business operations continued as before. Sammi's name also remained the same.
Therefore, we preliminarily determine that Sammi was the same “person” after Inchon became Sammi's majority shareholder. Furthermore, we preliminarily determine that any allocable subsidies received by Sammi prior to Inchon's share acquisition continue to benefit the post-share-acquisition Sammi.
According to section 351.525(b)(6)(vi) of the Department's regulations, cross-ownership exists between two corporations where one corporation can use or direct the individual assets of the other corporation in essentially the same ways it can use its own assets. Normally, this standard will be met where there is a majority voting ownership interest between two corporations. On December 6, 2000, Inchon became the majority shareholder of Sammi with 68 percent of Sammi's shares. The Department's regulations acknowledge that control can be exercised by one corporation over
Under Korea's Company Reorganization Act, the authority for management control (
With respect to foreign sources of credit, in
Based on our findings on this issue in prior investigations, we are using the following benchmarks to calculate the subsidies attributable to respondent's long-term loans obtained in the years 1991 through 2001:
(1) For countervailable, foreign-currency denominated loans, we used, where available, the company-specific weighted-average U.S. dollar-denominated interest rates on the company's loans from foreign bank branches in Korea.
(2) For countervailable won-denominated long-term loans, where available, we used the company-specific corporate bond rate on the company's public and private bonds. We note that this benchmark is based on the decision in
Under section 351.107(b)(1) of the Department's regulations, when the subject merchandise is exported to the United States by a company that is not the producer of the merchandise, the Department may establish a “combination” rate for each combination of an exporter and supplying producer. However, as noted in the Preamble to the regulations, there may be situations in which it is not appropriate or practicable to establish combination rates when the subject merchandise is exported by a trading company.
We preliminarily determine that it is not appropriate to establish combination rates, with respect to this review. This determination is based on two main facts: first, the majority of the subsidies conferred upon the subject merchandise were received by the producer; second, the level of subsidies conferred upon the individual trading company with regard to the subject merchandise is insignificant.
Instead, we have continued to calculate a rate for the producers of subject merchandise that includes the subsidies received by the trading company. To reflect those subsidies that are received by the exporter of the subject merchandise in the calculated
The Department previously determined in the
In
In
In the
In the instant proceeding we asked the GOK for information pertaining to the GOK's direction of credit policies for 2001. The GOK did not provide any additional information stating that, “the legal costs to further contest this issue in this review overshadow any possible benefit.”
INI and Sammi received long-term fixed and variable rate loans from GOK owned/controlled institutions that were outstanding during the POR. In order to determine whether these GOK directed loans conferred a benefit, we compared the interest rates on the directed loans to the benchmark interest rates detailed in the “Subsidies Valuation Information” section of this notice.
In
The Preamble goes on to describe those situations in which the Department shall deviate from the “simple, default methodology,” and instead employ the grant equivalent methodology. The Preamble states that, “[b]ecause a firm may derive a benefit from special repayment terms, in addition to any benefit derived from a concessional interest rate,” the Department will calculate the benefit using the grant equivalent methodology.
There is no information on the record of these preliminary results that indicates that either INI or Sammi derived a benefit from any special repayment terms (
To determine the total benefit for all directed credit, we added the benefit derived from foreign currency loans to the benefit derived from won denominated loans and divided the total benefit by INI/BNG's total f.o.b. sales value during the POR. On this basis, we preliminarily determine the countervailable subsidy to be 0.24 percent
Under Article 16 of the TERCL, a domestic person engaged in a foreign-currency earning business can establish a reserve amounting to the lesser of one percent of foreign exchange earnings or 50 percent of net income for the respective tax year. Losses accruing from the cancellation of an export contract, or from the execution of a disadvantageous export contract, may be offset by returning an equivalent amount from the reserve fund to the income account. Any amount that is not used to offset a loss must be returned to the income account and taxed over a three-year period, after a one-year grace period. All of the money in the reserve is eventually reported as income and subject to corporate tax either when it is used to offset export losses or when the grace period expires and the funds are returned to taxable income. The deferral of the payment of taxes owed is equivalent to an interest-free loan in the amount of the company's tax savings. This program is only available to exporters. According to information provided by respondents, this program was terminated on April 10, 1998, and no new funds could be placed in this reserve after January 1, 1999. However, INI still had an outstanding balance in this reserve during the POR. Sammi did not use this program.
In
In
To determine the benefit conferred on INI by this program, we calculated the tax savings by multiplying the balance amount of the reserve as of December 31, 2000, as filed during the POR, by the corporate tax rate for 2000. We treated the tax savings on these funds as a short-term interest-free loan.
Under Article 17 of the TERCL, a domestic person engaged in a foreign trade business is allowed to establish a reserve fund equal to one percent of its foreign exchange earnings from its export business for the respective tax year. Expenses incurred in developing overseas markets may be offset by returning from the reserve, to the income account, an amount equivalent to the expense. Any part of the fund that is not placed in the income account for the purpose of offsetting overseas market development expenses must be returned to the income account in three yearly installments, after a two-year grace period. The balance of this reserve fund is not subject to corporate income tax during the grace period. However, all of the money in the reserve is eventually reported as income and subject to corporate tax either when it offsets export losses or when the grace period expires. The deferral of tax payment amounts to an interest-free loan equal to the company's tax savings. This program is only available to exporters. Neither INI nor Sammi used this program during the POR; however, INI exported subject merchandise through Hyosung, which used this program during the POR.
In
To determine the benefit conferred by this program, we calculated the tax savings by multiplying the balance amount of the reserve as of December 31, 2000, by the corporate tax rate for 2000. We treated the tax savings on these funds as a short-term interest-free loan. Accordingly, to determine the benefit, we multiplied the amount of tax savings by Hyosung's weighted-average interest rate for short-term won-denominated commercial loans for the POR. Using the methodology for calculating subsidies received by trading companies, which also is detailed in the “Subsidies Valuation Information” section of this notice, we calculate a countervailable subsidy of less than 0.005 percent
On December 28, 1998, the TERCL was replaced by the Tax Reduction and Exemption Control Act (RSTA). Pursuant to this change in law, TERCL Article 8 is now identified as RSTA Article 9. Apart from the name change, the operation of RSTA Article 9 is the same as the previous TERCL Article 8 and its Enforcement Decree.
This program allows a company operating in manufacturing or mining, or in a business prescribed by the Presidential Decree, to appropriate reserve funds to cover expenses related to the development or innovation of technology. These reserve funds are included in the company's losses and reduce the amount of taxes paid by the company. Under this program, capital goods and capital intensive companies can establish a reserve of five percent of total revenue, while companies in all other industries are only allowed to establish a three percent reserve.
In
Under Article 56(2) of the TERCL, the GOK permitted companies that made an initial public offering between January 1, 1987, and December 31, 1990, to revalue their assets at a rate higher than the 25 percent required of most other companies under the Asset Revaluation Act. In
To calculate the benefit from the program we reviewed the effect that the difference in the revaluation of depreciable assets had on INI's tax liability each year. Sammi did not use this program. We multiplied the additional depreciation in the tax return filed during the POR, which resulted from the company's asset revaluation, by the tax rate applicable to that tax return. We then divided the benefit by INI/BNG's total f.o.b. sales. Accordingly, we preliminarily determine that the net countervailable subsidy for this program is less than 0.005 percent
Under Korean tax laws, companies are allowed to claim investment tax credits for various kinds of investments. If the investment tax credits cannot all be used at the time they are claimed, then the company is authorized to carry them forward for use in subsequent years. Until December 28, 1998, these investment tax credits were provided under the TERCL. On that date, the TERCL was replaced by the Restriction of Special Taxation Act (RSTA). Pursuant to this change in the law, investment tax credits received after December 28, 1998, were provided under the authority of RSTA.
During the POR, INI earned or used tax credits for investments in productivity increasing “facilities” (RSTA Article 24, previously TERCL Article 25) and investments in specific “facilities” (RSTA Article 25, previously TERCL Article 26). Sammi did not use either program. Under these programs, if a company invested in foreign-produced “facilities,” the company received a tax credit equal to either three or five percent of its investment. However, if a company invested in domestically-produced “facilities,” it received a ten percent tax credit. Under section 771(5A)(C) of the Act, a program that is contingent upon the use of domestic goods over imported goods is specific, within the meaning of the Act. Because Korean companies received a higher tax credit for investments made in domestically-produced “facilities,” in
In
INI claimed tax credits under RSTA Article 24 and RSTA Article 25 for investments that originated when there was a distinction between purchasing domestic “facilities” and imported “facilities.” To calculate the benefit from these investment tax credits, we examined the amount of tax credits INI deducted from its taxes payable for the 2000 fiscal year income tax return, which was filed during the POR. We
With respect to the Requested Load Adjustment (RLA) program, the GOK introduced this discount in 1990 to address emergencies in the supply of electricity by the government-owned electricity provider, Korea Electric Power Company (KEPCO). Under this program, customers with a contract demand of 5,000 kW or more, who can curtail their maximum demand by 20 percent or suppress their maximum demand by 3,000 kW or more, are eligible to enter into an RLA contract with KEPCO. Customers who choose to participate in this program must reduce their load upon KEPCO's request, or pay a surcharge to KEPCO.
Customers can apply for this program between May 1 and May 15 of each year. If KEPCO finds the application in order, KEPCO and the customer enter into a contract with respect to the RLA discount. The RLA discount is provided based upon a contract for two months, normally July and August. Under this program, a basic discount of 440 won per kW is granted between July 1 and August 31, regardless of whether KEPCO makes a request for a customer to reduce its load. During the POR, KEPCO and INI entered into a contract pursuant to which KEPCO granted INI electricity discounts under this program.
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INI did receive discounts during the POR; therefore, we find that a financial contribution is provided to INI under this program, within the meaning of section 771(5)(D)(ii) of the Act, in the form of revenue foregone by the government. Sammi did not use this program. The benefit provided under this program is a discount on a company's monthly electricity charges. Respondents have not provided any new information to warrant reconsideration of this determination. Therefore, we continue to find this program countervailable.
Because the electricity discounts provide recurring benefits, we have expensed the benefit from this program in the year of receipt. To measure the benefit from this program, we summed the electricity discounts which INI received from KEPCO under the RLA program during the POR. We then divided that amount by INI/BNG's total f.o.b. sales value for 2001. On this basis, we preliminarily determine a net countervailable subsidy of 0.01 percent
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We previously determined that POSCO was a government-controlled company at the time it purchased Sammi's bar and pipe facility.
During this review, we provided the GOK the opportunity to present information about other similar facility purchases during the time period of POSCO's purchase of Sammi's bar and pipe facility.
A benefit is conferred where the government purchases goods at more than adequate remuneration.
The next issue is whether POSCO purchased Sammi's bar and pipe facility at more than adequate remuneration. The Department is guided by section 351.511(a)(2) of the regulations. Due to the absence of evidence of either a market-determined price for this facility in Korea or a world market-price, we are determining the benefit provided by this program by evaluating whether POSCO's purchase price for this good is consistent with market principles, as described in section 351.511(a)(2)(iii) of the regulations.
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We used record evidence to calculate the amount POSCO overpaid for this facility. The BAI report cites several items which POSCO should have known were worth less than the value attached to them by valuation studies and includes the BAI's valuation of these items.
Therefore, in accordance with section 771(5)(A) of the Act, we determine that this program conferred a countervailable benefit to Sammi. On this basis, we preliminarily determine a net countervailable subsidy of 0.28 percent
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In the instant review, we preliminarily find that the evidence relied upon in the previous determinations has changed, and, therefore, the Department's earlier finding is no longer applicable. Specifically, in previous determinations, the Department concluded that the GOK controlled POSCO on the basis of a number of factors, including: (1) The GOK was the largest shareholder, (2) the GOK enacted a law that restricted individual shareholders from exercising voting rights in excess of three percent of the company's common share and the inclusion of a similar restriction in POSCO's Articles of Incorporation, (3) POSCO was designated as a “public company,” (4) POSCO's chairman and half of POSCO's outside directors were appointed by the GOK, and (5) POSCO's chairman and several of POSCO's appointed directors were former senior government officials.
With respect to the first factor, during the POR, the GOK no longer was the largest owner of POSCO's shares. During 2001, the largest GOK-owned holder of POSCO's shares was the Industrial Bank of Korea (IBK), the only entity with GOK ownership that held more than one percent of POSCO's shares during this period. The IBK held 3.12 percent of POSCO's common shares as of December 31, 2001. The single largest shareholder of POSCO's shares at the end of 2001 was POSTECH, with 3.14 percent. POSTECH is a technical university owned by POSCO. With respect to the second and third factors, POSCO's designation as a “public company” was removed on September 26, 2000, which also removed the restriction on an individual shareholder's voting rights. However, the latter became effective during the POR on March 16, 2001, when the clause included in POSCO “s Articles of Incorporation restricting individual ownership was officially removed at the General Shareholders Meeting.
Regarding the fourth and fifth factors, in March 1999, POSCO revised its Articles of Incorporation, establishing new procedures for selecting members of the Board of Directors (BOD), assuring the independence and transparency of the selection process. During the General Meeting of Shareholders, held on March 17, 2000, two outside directors who were former government employees resigned. During the POR, none of the standing directors on POSCO's BOD were former government employees or officials, while two of eight outside directors were former government employees or officials. Moreover, while POSCO's current chairman is the same individual that was appointed by the President of Korea, he was subsequently reappointed by the shareholders in March 2001.
In light of these changes, we preliminarily determine that the GOK did not control POSCO during the POR. As such, we also preliminarily find that absent GOK control over POSCO, there is no longer a government financial contribution as defined by section 771(D)(iii) of the act, and, therefore, that this program is no longer countervailable.
We examined at verification the voluntary electric power savings adjustment (VEPS) program, Article 107-2 of the Regulation on Optional Electricity Supply. This program is associated with the VRA program previously examined by the Department and found not countervailable.
We analyzed whether the VEPS program is specific in law (
We also examined evidence regarding the usage of the VEPS program and found no predominant use by the steel industry. The information on the record demonstrates that discounts under the VEPS are distributed to a large number of firms in a wide variety of industries.
Petitioners allege that Kangwon Industries Ltd. (Kangwon) received a countervailable benefit through a debt-for-equity swap and that the benefit is attributable to INI.
Petitioners argue that the GOK-owned banks' decision to participate in the swap was inconsistent with the usual investment practice of private investors, and, therefore, conferred a benefit upon Kangwon and its parent company, Inchon, within the meaning of section 771(5)(E)(i) of the Act, in the form of a government equity infusion, as the equity for which the debt was exchanged was worthless at the time of its issuance. Petitioners further allege that the debt-for-equity swap constitutes a government financial contribution within the meaning of section 771(5)(D)(ii) of the Act in the form of revenue foregone. In addition, they allege that this program is specific under section 771(5A)(D)(iii)(IV) of the Act, as this transaction was limited to Kangwon.
On June 26, 1999, Kangwon and Inchon entered into a memorandum of understanding (MOU) regarding the merger. On July 27, 1999, Kangwon and Inchon established a task force team to carry out the merger. On October 15, 1999, at the 8th Creditor Financial Institutions' Conference (Creditors' Conference) the creditors voted on seven agenda items that detailed the different financial transactions and agreements, as well as Kangwon's merger with Inchon. Five of these seven items passed with the required 75 percent approval of creditors who were signatories to the CRA. On November 1, 1999, at the 9th Creditors' Conference, the final two agenda items were approved. Then, on November 2, 1999, the BOD of both Inchon and Kangwon met to approve the merger, and the two companies entered into the merger agreement. On December 14, 1999, Kangwon's shareholders met and approved the merger, and on January 7, 2000, Inchon's shareholders met and approved the merger. On January 12, 2000, the debt-to-equity swap was made. The financial transactions completing the merger were executed on March 15, 2000, and Kangwon's stocks were swapped for Inchon's stocks. On March 16, 2000, Inchon reported the merger to the Korean Stock Exchange. On July 31, 2000, the companies entered into the supplemental agreement for the merger, which included additional financial guarantees.
We examined this issue at length during verification (
Sammi received debt forgiveness as part of a workout plan agreed to by Sammi's creditors while Sammi was under court receivership from March 18, 1997 until March 23, 2001. KAMCO, a government-owned entity, was Sammi's lead creditor during a portion of Sammi's time under court receivership. In the previous review, petitioners argued that even though this debt forgiveness occurred in the context of bankruptcy proceedings, the debt forgiveness was specific.
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In addition, we requested information pertaining to KAMCO's participation in M&A agreements while acting as lead creditor for companies under court receivership. See GOK Verification Report, Exhibit KAM-1. Based on this information, the debt forgiveness agreed to by KAMCO with respect to Sammi's workout plan was similar to the debt forgiveness agreed to with respect to other companies in court receivership where KAMCO was the lead creditor. Therefore, we find that KAMCO's debt forgiveness to Sammi is not specific within the meaning of Section 771(5A)(D)(iii) of the Act.
Furthermore, it is the Department's practice to find that debt forgiveness in the context of bankruptcy, is not countervailable.
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for the producer/exporter subject to this administrative review. For the period January 1, 2001 through December 31, 2001, we preliminarily determine the net subsidy for INI/BNG to be 0.56 percent
If the final results of this review remain the same as these preliminary results, the Department intends to instruct the U.S. Bureau of Customs and Border Protection (BCBP) to assess countervailing duties as indicated above. The Department also intends to instruct BCBP to collect cash deposits of estimated countervailing duties as indicated above as a percentage of the f.o.b. invoice price on all shipments of the subject merchandise from reviewed companies, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review.
Because the URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named.
We will instruct the BCBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order will be the rate for that company established in the most recently completed administrative proceeding conducted under the URAA. If such a review has not been conducted, the rate established in the most recently completed administrative proceeding pursuant to the statutory provisions that were in effect prior to the URAA amendments is applicable.
Upon completion of this administrative review, the Department will determine, and BCBP shall assess, countervailing duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(2), we have calculated a company-specific assessment rate for merchandise subject to this review. The Department will issue appropriate assessment instructions directly to the BCBP within 15 days of publication of the final results of review. If these preliminary results are adopted in the final results of review, we will direct the BCBP to assess the resulting assessment rates against the entered customs values for the subject merchandise on each of the company's entries during the review period.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations
Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief or at a hearing.
This administrative review is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677f(i)(1)).
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review.
On May 6, 2003, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on certain steel concrete reinforcing bars from Turkey (68 FR 23972). This review covers five manufacturers/exporters of the subject merchandise to the United States. The period of review is April 1, 2001, through March 31, 2002. We are rescinding the review with respect to Diler Demir Celik Endustrisi ve Ticaret A.S./Yazici Demir Celik Sanayi ve Ticaret A.S./Diler Dis Ticaret A.S. and Ekinciler Demir Celik A.S. because these companies had no entries of subject merchandise to the United States during the period of review. Finally, we have determined not to revoke the antidumping duty order with respect to ICDAS Celik Enerji Tersane ve Ulasim Sanayi, A.S.
Based on our analysis of the comments received, we have made changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”
September 9, 2003.
Irina Itkin or Elizabeth Eastwood, Office of AD/CVD Enforcement, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone (202) 482-0656 and (202) 482-3874, respectively.
This review covers the following five manufacturers/exporters: Colakoglu Metalurji A.S. and Colakoglu Dis Ticaret (collectively “Colakoglu”); Diler Demir Celik Endustrisi ve Ticaret A.S., Yazici Demir Celik Sanayi ve Ticaret A.S., and Diler Dis Ticaret A.S. (collectively “Diler”); Ekinciler Demir Celik A.S. (Ekinciler); Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. (Habas); and ICDAS Celik Enerji Tersane ve Ulasim Sanayi, A.S. (ICDAS).
On May 6, 2003, the Department published in the
On May 13, 2002, Diler and Ekinciler informed the Department that they had no shipments of subject merchandise to the United States during the period of review (POR). We reviewed data from the Bureau of Customs and Border Protection (BCBP) and confirmed that there were no entries of subject merchandise from either company. Consequently, in accordance with 19 CFR 351.213(d)(3) and consistent with our practice, we are rescinding our review for Diler and Ekinciler. For further discussion, see the “Partial Rescission of Review” section of this notice, below.
We invited parties to comment on our preliminary results of review. In June 2003, we received case briefs from the petitioners (Gerdau AmeriSteel Corporation, Commercial Metals Company (SMI Steel Group), and Nucor Corporation) and ICDAS, and rebuttal briefs from the petitioners, Colakoglu, and ICDAS.
The Department held a hearing on July 16, 2002, at the request of ICDAS.
The Department has conducted this administrative review in accordance with section 751 of the Act.
The product covered by this order is all stock deformed steel concrete reinforcing bars sold in straight lengths and coils. This includes all hot-rolled deformed rebar rolled from billet steel, rail steel, axle steel, or low-alloy steel. It excludes (i) plain round rebar, (ii) rebar that a processor has further worked or fabricated, and (iii) all coated rebar. Deformed rebar is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers 7213.10.000 and 7214.20.000. The HTSUS subheadings are provided for convenience and customs purposes. The written
The POR is April 1, 2001, through March 31, 2002.
As noted above, Diler and Ekinciler notified the Department that they had no shipments and/or entries of subject merchandise to the United States during the POR. We have confirmed this with the BCBP. Therefore, in accordance with 19 CFR 351.213(d)(3) and consistent with the Department's practice, we are rescinding our review with respect to Diler and Ekinciler. (
As discussed in the
We found 20 percent or more of each respondent's sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade.
Therefore, for purposes of these final results, we found that Colakoglu, Habas, and ICDAS made below-cost sales not in the ordinary course of trade. Consequently, we disregarded these sales for each respondent and used the remaining sales as the basis for determining normal value, pursuant to section 773(b)(1) of the Act.
All issues raised in the case and rebuttal briefs by parties to this administrative review and to which we have responded are listed in the Appendix to this notice and addressed in the Decision Memorandum, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room B-099, of the main Department building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
Based on our analysis of comments received, we have made certain changes in the margin calculations. These changes are discussed in the relevant sections of the Decision Memo.
We determine that the following weighted-average margin percentages exist for the period April 1, 2001, through March 31, 2002:
The Department will determine, and the BCBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), for Habas and ICDAS, for those sales with a reported entered value, we have calculated importer-specific assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of those sales.
Regarding all of Colakoglu's sales and certain of ICDAS's sales, for assessment purposes, we do not have the information to calculate entered value because these companies were not the importers of record for the subject merchandise. Accordingly, we have calculated importer-specific assessment rates for the merchandise in question by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates were
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of rebar from Turkey entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: 1) The cash deposit rates for the reviewed companies will be the rates indicated above; 2) for previously investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; 3) if the exporter is not a firm covered in this review, or the less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and 4) the cash deposit rate for all other manufacturers or exporters will continue to be 16.06 percent, the all others rate established in the LTFV investigation.
These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of the preliminary results of antidumping duty administrative review.
In response to a request from the Committee for Fair Beam Imports, Nucor Corp., Nucor-Yamato Steel Co., TXI-Chaparral Steel Co., (“Petitioners”), INI Steel Company (“INI”), and Dongkuk Steel Mill Co., Ltd. (“DSM”), the Department of Commerce (“Department”) is conducting an administrative review of the antidumping duty order on structural steel beams (“SSB”) from the Republic of Korea. This review covers INI and DSM, manufacturers and exporters of the subject merchandise. The period of review (“POR”) is August 1, 2001 through July 31, 2002.
We preliminarily determined that INI has sold subject merchandise at less than normal value (“NV”) during the POR. However, we preliminarily determine that DSM has not sold subject merchandise at less than NV. If these preliminary results are adopted in our final results of administrative review, we will instruct the U.S. Bureau of Customs and Border Protection (“Customs”) to assess antidumping duties on entries of INI's merchandise during the POR for which the importer-specific assessment rates are above
We invite interested parties to comment on these preliminary results. Parties who submit arguments in this segment of the proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument.
September 9, 2003.
Aishe Allen (DSM) or Michael Holton (INI), Enforcement Group III—Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-0172 and (202) 482-1324, respectively.
On August 18, 2000, the Department published in the
On August 30, 2002, respondent DSM, a Korean producer of subject merchandise, requested a review of its sales of subject merchandise during the POR in accordance with 19 CFR 351.213(b)(1). On August 30, 2002, petitioners and INI, in separate requests, requested that the Department conduct an administrative review of INI for the period of August 1, 2001 to July 31, 2002. On September 25, 2002, the Department published a notice of initiation of this antidumping duty administrative review for the period of August 1, 2001 through July 31, 2002.
On September 30, 2002, the Department issued a questionnaire to DSM. DSM submitted its Section A questionnaire response on November 4, 2002. On November 13, 2002, DSM submitted its Sections B and C questionnaire responses.
On November 14, 2002, Petitioners submitted comments regarding sales below cost of production for DSM and requested that DSM respond to section D of the Department's September 30, 2002 questionnaire. On November 18, 2002, the Department informed petitioners that it would need to file a sales below cost allegation for the Department to consider whether DSM sold below its cost of production during the POR. On December 6, 2002, petitioners submitted an allegation that the home market sales submitted by DSM in its November 13, 2002, section B response were below its cost of production.
On December 20, 2002, the Department issued a supplemental questionnaire covering DSM's November 4, 2002 section A response. On January 13, 2003, DSM submitted its section A supplemental response to the Department's December 20, 2002 supplemental questionnaire.
On January 21, 2003, the Department initiated a sales below cost of production inquiry, and on January 22, 2003, requested DSM to respond to section D of the questionnaire.
On February 4, 2003, DSM requested that the Department allow it to report cost of production and constructed value information based on DSM's fiscal accounting period, which is based upon the calendar year (January 1 to December 31). On February 7, 2003, the Department issued a questionnaire to DSM requesting why it should not report its cost of production and constructed value data based on a fiscal year basis instead of the POR. On February 13, 2003, DSM submitted additional information regarding its cost reporting period.
On February 19, 2003, DSM submitted its Section D questionnaire response. On February 26, 2003, the Department issued a supplemental questionnaire covering DSM's section B response. On March 7, 2003, the Department issued a supplemental questionnaire covering DSM's November 4, 2002 Section C response. On March 24, 2003, the Department issued a supplemental questionnaire covering DSM's February 19, 2003 section D response. Also, on March 24, 2002, DSM submitted its section B response to the Department's February 26, 2002 supplemental questionnaire. On April 4, 2003, DSM submitted its section C response to the Department's March 7, 2003 supplemental questionnaire. On April 11, 2003, the Department issued a second supplemental questionnaire covering DSM's January 13, 2003 Section A response.
On April 21, 2003, DSM submitted its section D response to the Department's March 24, 2003 supplemental questionnaire. On May 6, 2003, DSM submitted its section A response to the Department's April 11, 2003 second supplemental questionnaire. On May 20, 2003, the Department issued a second supplemental questionnaire covering DSM's Section B response. On June 5, 2003, the Department issued a second supplemental questionnaire covering DSM's Section C response. On June 11, 2003, DSM submitted its section B response to the Department's May 20, 2003 second supplemental questionnaire. On June 24, 2003, DSM submitted its section C response to the Department's June 5, 2003 second supplemental questionnaire.
On June 26, 2003, the Department issued a second supplemental questionnaire covering DSM's Section D response. On July 8, 2003, DSM submitted its section D response to the Department's June 26, 2003 second supplemental questionnaire. On August 11, 2003, the Department determined that DSM and the Korean trading company it used were actually affiliated companies during the POR.
On September 25, 2002, the Department issued its antidumping questionnaire to INI. On November 4, 2002, INI reported that it made sales of subject merchandise to the United States during the POR in its response to Section A of the Department's questionnaire. On November 26, 2002, INI submitted its response to Sections B, C, and D of the Department's questionnaire. On March 14 and 19, 2003, the Department issued supplemental Sections A through C and Section D questionnaires, respectively. INI submitted its response to the Sections A through D supplemental questionnaires on April 11, 2003. On May 28, 2003, the Department issued its second supplemental questionnaires for Sections A through C. On May 30, 2003, the Department issued a third supplemental questionnaire for Section B. On June 9, 2003, INI submitted its response to the Sections A through D second supplemental questionnaires. On June 6, 2003, the Department issued a second supplemental Section D questionnaire. On June 13, 2003, INI submitted its response to the Department's second Section D supplemental questionnaire. On June 13, 2003, the Department issued a third supplemental questionnaire for Sections B through D to INI. On June 18, 2003, INI submitted its response to the third supplemental questionnaire for Sections B through D.
On April 17, 2003, due to the reasons set forth in the
The Department is conducting this administrative review in accordance with section 751 of the Act.
As provided in section 782(i) of the Act, the Department verified sales information of INI on June 23 through 27, 2003, sales information of DSM from July 21 through July 25, 2003, and sales information of DSM's United States affiliate Dongkuk International, Inc. (“DKA”), July 29 through July 31, 2003, using standard verification procedures, including an examination of relevant sales, financial and production records, and selection of original documentation containing relevant information. Our verification results are outlined in the public versions of the verification reports and are on file in the Central Records Unit (“CRU”) located in room 1870 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW., Washington, DC.
The products covered by this investigation are doubly-symmetric shapes, whether hot- or cold-rolled, drawn, extruded, formed or finished, having at least one dimension of at least 80 mm (3.2 inches or more), whether of carbon or alloy (other than stainless) steel, and whether or not drilled, punched, notched, painted, coated or clad. These products include, but are not limited to, wide-flange beams (“W” shapes), bearing piles (“HP” shapes), standard beams (“S” or “I” shapes), and M-shapes.
All products that meet the physical and metallurgical descriptions provided above are within the scope of this investigation unless otherwise excluded. The following products, are outside and/or specifically excluded from the scope of this investigation: structural steel beams greater than 400 pounds per linear foot or with a web or section height (also known as depth) over 40 inches.
The merchandise subject to this investigation is classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheadings: 7216.32.0000, 7216.33.0030, 7216.33.0060,
In accordance with section 771(16) of the Act, we considered all SSB produced by DSM and INI covered by the description in the “Scope of Review” section of this notice,
In order to complete the dumping calculation, the Department must determine whether the Korean trading company that DSM sold subject merchandise through is affiliated. DSM reported that it sold subject merchandise during the POR to an unaffiliated Korean trading company and reseller of the subject merchandise, which, in turn, resold the subject merchandise to DKA, an affiliated U.S. importer. As discussed below, the Department preliminarily determines that the Korean trading company is affiliated with DSM.
Information submitted on the record by DSM in its original Section A response indicates that DSM was not affiliated with the Korean trading company during the POR. In the Section A response, DSM reported that in January of 2001, it sold all of its ownership interest in the Korean trading company and was, therefore, no longer affiliated.
On February 12, 2003, Petitioners alleged that INI made sales outside the ordinary course of trade (“OCT”) during the POR. Petitioners alleged that all of INI's home market sales of non-Korean specification (“non-KS”) SSBs are outside the OCT based on total volume sold, the customer base, price per shipment and profitability of sales, and should be excluded from the home market database in the margin calculation. Additionally, Petitioners claim that all non-KS sales are overruns. Further, Petitioners stated that if the Department decided not to exclude all of INI's non-KS merchandise, then Petitioners have alleged that certain non-KS home market sales are aberrational and outside the OCT, and should be excluded from the home market database in the calculation of the margin. The Department has determined, based on record evidence, that certain INI home market sales are outside the OCT, and thus have made changes to INI's home market sales database. However, due to the proprietary nature of this information and for a complete discussion of this issue, please see the memorandum of
To determine whether sales of subject merchandise made by DSM and INI to the United States were made at prices below NV, we compared the export price (“EP”), or the constructed export price (“CEP”), to the NV, as described below. Pursuant to section 777A(d)(2) of the Act, we compared the EPs and CEPs of individual U.S. transactions to the monthly weight-averaged NV of the foreign like product where there were sales at prices above the cost of production (“COP”), as discussed in the “Cost of Production Analysis” section below.
Section 772(a) of the Act defines EP as “the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States. . . .,” as adjusted under subsection (c). Section 772(b) of the Act defines CEP as “the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. . . .,” as adjusted under subsections (c) and (d). For the purpose of this administrative review DSM classified all of its U.S. sales as CEP, and INI has classified its U.S. sales as either EP or CEP.
DSM identified one channel of distribution for its U.S. sales. For U.S. sales, DSM sold all subject merchandise to an affiliated trading company in Korea (see affiliation section above), the subject merchandise was then resold by the affiliated trading company in Korea to DSM's U.S. affiliate, DKA, and DKA then resold the subject merchandise to unaffiliated U.S. customers. DSM has reported these sales as CEP sales because the first sale to an unaffiliated party occurred in the United States. Therefore, we based our calculation on CEP, in accordance with subsections 772(b), (c), and (d) of the Act.
We calculated CEP based on packed prices to unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with
For CEP sales, we also made an adjustment for profit in accordance with section 772 (d)(3) of the Act. We deducted the profit allocated to expenses deducted under sections 772(d)(1) and 772(d)(2) in accordance with sections 772(d)(3) and 772(f) of the Act. In accordance with section 772(f) of the Act, we computed profit based on total revenue realized on sales in both the U.S. and home markets, less all expenses associated with those sales. We then allocated profit expenses incurred with respect to U.S. economic activity, based on the ratio of total U.S. expenses to total, expenses for both the U.S. and home markets.
We changed the U.S. indirect selling expense ratio to correspond to the information contained in the finalized version of DKA's audited financial statements.
Furthermore, we have included the selling and general administrative (“SG&A”) expenses of the affiliated trading company in Korea (
For this administrative review, INI reported that it sold both EP and CEP sales. EP sales were sold by the producer, INI, to an unaffiliated customer in the United States. The Department has determined that the sales made between INI's U.S. affiliate, Hyundai USA Corporation (“Hyundai USA”), and the first unaffiliated customer in the United States are CEP sales.
Having determined certain sales as EP, we calculated the packed, delivered, tax and duty paid price to unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight from the plant to the warehouse, foreign warehousing expenses, foreign inland freight from the warehouse to the port of export, foreign wharfage and lashing expenses, international freight, other U.S. transportation expenses (
We calculated the price of INI's sales based on CEP in accordance with section 772(b) of the Act. We calculated CEP based on packed prices to unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included where appropriate, foreign inland freight from the plant to the warehouse, foreign warehousing expenses, foreign inland freight from the warehouse to the port of export, foreign wharfage and lashing expenses, international freight, other U.S. transportation expenses (
For CEP sales, we also made an adjustment for profit in accordance with section 772 (d)(3) of the Act. We deducted the profit allocated to expenses deducted under sections 772(d)(1) and 772(d)(2) in accordance with sections 772(d)(3) and 772(f) of the Act. In accordance with section 772(f) of the Act, we computed profit based on total revenue realized on sales in both the U.S. and home markets, less all expenses associated with those sales. We then allocated profit expenses incurred with respect to U.S. economic activity, based on the ratio of total U.S. expenses to total expenses for both the U.S. and home markets.
For both EP and CEP sales, we made certain changes to INI's packing expenses based on pre-verification corrections.
After testing home market viability, we calculated NV as noted in the “Price-to-CV Comparisons” and “Price-to-Price Comparisons” sections of this notice.
In accordance with section 773(a)(1)(C) of the Act, to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
For NV, we used the prices at which the foreign like product was first sold for consumption in Korea, in the usual commercial quantities, in the ordinary
INI reported that it made sales in the home market to affiliated and unaffiliated end users and unaffiliated distributors. Sales to affiliated customers in the home market not made at arm's length were excluded from our analysis. To test whether these sales were made at arm's length, we compared the starting prices of sales to affiliated and unaffiliated customers net of all billing adjustments, movement charges, direct selling expenses, discounts and packing. Where prices to the affiliated party were on average 99.5 percent or more of the price to the unaffiliated party, we determined that sales made to the affiliated party were made at arm's length. See 19 CFR 351.403(c).
Based on the information contained in a timely filed cost allegation by the petitioners on December 6, 2002, the Department found reasonable grounds to believe or suspect that DSM's sales of the foreign like product in their respective comparison market were made at prices below the cost of production, pursuant to section 773(b)(1) of the Act based on allegations made by petitioners in this case.
Because the Department disregarded certain INI sales made in the home market at prices below the cost of producing the subject merchandise in the most recently completed segment of this proceeding and excluded such sales from normal value, the Department determined that there are reasonable grounds to believe or suspect that INI made sales in the home market at prices below the cost of producing the merchandise in this review.
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of DSM and INI's respective costs of materials and fabrication for the foreign like product, plus amounts for home market SG&A, including interest expenses, and packing costs. The Department relied on the COP data submitted by DSM and INI in their original and supplemental cost questionnaire responses.
For the purpose of these preliminary results, we did not revise the COP information submitted by DSM or INI.
We compared the weighted-average COP for DSM's and INI's home market sales of the foreign like product as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. In determining whether to disregard home market sales made at prices less than the COP, we examined whether such sales were made: (1) in substantial quantities within an extended period of time; and (2) at prices which permitted the recovery of all costs within a reasonable period of time, in accordance with sections 773(b)(1)(A) and (B) of the Act. We compared the COP to home market prices, less any applicable billing adjustments, movement charges, discounts, and indirect selling expenses.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of DSM or INI's sales of a given product were, within an extended period of time, at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of DSM or INI's sales of a given product were at prices less than the COP, we determined such sales to have been made in “substantial quantities” within an extended period of time, in accordance with sections 773(b)(2)(B) of the Act and 19 CFR 351.406(b). In such cases, because we used POR average costs, we also determined that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. We compared the COP for subject merchandise to the reported home market prices less any applicable movement charges. Based on this test, we disregarded below-cost sales. Where all sales of a specific product were at prices below the cost of production, we disregarded all sales of that product.
In accordance with section 773(e)(1) of the Act, we calculated DSM's and INI's CV based on the sum of their cost of materials, fabrication, SG&A, including interest expenses, and profit. We calculated the COPs included in the calculation of CV as noted above in the “Calculation of COP” section of this notice. In accordance with section 773(e)(2)(A) of the Act, we based SG&A and profit on the amounts incurred and realized by DSM and INI in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the foreign country. For selling expenses, we used the actual weighted-average home market direct and indirect selling expenses.
For those product comparisons for which there were sales at prices above the COP, we based NV on the home
We made adjustments, where applicable, for movement expenses (
We made changes to the reported variable cost of manufacturing, total cost of manufacturing and home market inventory carrying costs to account for a change in grade that was reported as a minor correction to the home market database at the start of verification.
For those product comparisons for which there were sales at prices above the COP, we based NV on the home market prices to unaffiliated purchasers and those affiliated customer sales which passed the arm's length test. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act.
We made adjustments, where applicable, for movement expenses (
For these preliminary results, we excluded certain home market sales from INI's reported home market sales data in the calculation of NV based on these sales being outside the ordinary course of trade.
In accordance with section 773(a)(4) of the Act, we based NV on CV if we were unable to find a home market match of identical or similar merchandise. We calculated CV based on DSM's and INI's costs of materials and fabrication employed in producing the subject merchandise, SG&A including interest, and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expense and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in Korea. For selling expenses, we used the actual weighted-average home market selling expenses. Where appropriate, we made adjustments to CV in accordance with section 773(a)(8) of the Act. We deducted from CV the weighted-average home market direct selling expenses.
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the CEP transaction. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on CV, that of the sales from which we derive SG&A expenses and profit. For EP, the LOT is also the level of the starting price sale, which is usually from the exporter to the importer. For CEP, it is the level of the constructed sale from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the differences in the levels between NV and CEP sales affects price comparability, we adjust NV under section 773(A)(7)(B) of the Act (the CEP offset provision).
In implementing these principles in this administrative review, we obtained information from INI about the marketing stages involved in its reported U.S. and home market sales, including a description of the selling activities performed for each channel of distribution. In identifying levels of trade for CEP, we considered only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act.
In accordance with the principles discussed above, we examined information regarding DSM's distribution systems in both the United States and Korean markets, including selling functions, classes of customers, and selling expenses for DSM.
DSM claimed only one level of trade in the home market.
DSM claimed one level of trade in the U.S. market because all of its U.S. sales are CEP sales made through its U.S. affiliate, DKA.
In order to determine whether NV was established at a different LOT than CEP sales, we examined stages in the marketing process and selling functions along the chains of distribution between (1) DSM and its home market customers and (2) DSM and its affiliated U.S. reseller, DKA, after deductions for expenses and profits. Specifically, we compared the selling functions performed for home market sales with those performed with respect to the CEP transaction, after deductions for economic activities which occurred in the United States, pursuant to section 772(d) of the Act, to determine if the home market level of trade constituted a different level of trade than the CEP level of trade. DSM did not request a CEP offset. Nonetheless, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and Korean markets, including the selling functions, classes of customer, and selling expenses to determine whether a CEP offset was necessary. For CEP sales, we found that DSM provided many of the same selling functions and expenses for its sale to its affiliated U.S. reseller, DKA, as it provided for its home market sales, including: Price negotiation; order processing; sales calls and demonstrations; warranty services; and freight arrangement. Based on our analysis of the channels of distribution and selling functions performed for sales in the home market and CEP sales in the U.S. market, we preliminarily find that there is not a significant difference in the selling functions performed in the home market and the U.S. market for CEP sales. Thus, we find that DSM's NV and CEP sales were made at the same LOT, and no LOT adjustment or CEP offset need be granted.
To determine whether an LOT adjustment was necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and home markets, including the selling functions, classes of customer, and selling expenses.
In both the U.S. and home markets, INI reported one level of trade.
For sales in home market channels one and two, INI performed all sales-related activities, including: Inventory maintenance; after sales services/warranty; freight and delivery arrangement; and credit. INI's home market sales in channels one and two were made from inventory. Because these selling functions are similar for both sales channels, we preliminarily determine that there is one LOT in the home market.
For sales in U.S. channels one and two, INI performed all sales-related activities, including: After sales services/warranty; freight and delivery arrangement; credit and import documents arrangement. Because these selling functions are similar for both sales channels, we preliminarily determine that there is one LOT in the U.S. market.
In order to determine whether NV was established at a different LOT than CEP sales, we examined stages in the marketing process and selling functions along the chains of distribution between INI and its home market customers. We compared the selling functions performed for home market sales with those performed with respect to the CEP transaction, after deductions for economic activities occurring in the United States, pursuant to section 772(d) of the Act, to determine if the home market levels of trade constituted more advanced stages of distribution than the CEP level of trade. In the present review, INI did not request a LOT adjustment or a CEP offset. To determine whether a CEP offset was necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and Korean markets, including the selling functions, classes of customer, and selling expenses.
Based on our analysis of the channels of distribution and selling functions performed for sales in the home market and CEP sales in the U.S. market, we preliminarily find that INI offered many of the same selling functions in both markets, including: After sales services/warranties; freight and delivery arrangement; and credit. Accordingly, we determine that there is not a significant difference in the selling functions performed in the home market and U.S. market and that these sales are made at the same LOT. Consequently, we preliminarily determine that a LOT adjustment or CEP offset is not warranted in this case. Furthermore, we find INI's NV and EP sales were made at the same LOT, and thus, no LOT adjustment need be granted.
We made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank, in accordance with Section 773A(a) of the Act.
As a result of this review, we preliminarily determine that the following weight-averaged dumping margin exists for the period August 1, 2001 through July 31, 2002:
The Department will disclose calculations performed, within five days of publication of this notice, to the
Upon completion of this administrative review, the Department will determine, and Customs shall assess, antidumping duties on all appropriate entries. In accordance with section 351.212(b)(1) of the Department's regulations, we will calculate exporter/importer specific assessment rates for merchandise subject to this review. The Department will issue appropriate assessment instructions directly to Customs within 15 days of publication of the final results of review. If these preliminary results are adopted in the final results of review, we will direct Customs to assess the resulting assessment rates against the entered customs values for the subject merchandise on each of the importers' entries during the review period.
The following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided in section 751(a)(1) of the Act: (1) The cash deposit rate for DSM and INI will be that established in the final results of this review; (2) for previously reviewed or investigated companies not covered in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less than fair value (“LTFV”) investigation, but the manufacturer is, the cash deposit rate will be the rate established in the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash deposit rate will continue to be the “all other” rate established in the LTFV investigation, which was 37.21 percent.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, that continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Rescission of Antidumping Duty New Shipper Review: Welded Carbon Steel Pipes and Tubes from India.
September 9, 2003.
On July 3, 2003, the Department of Commerce published in the Federal Register a notice announcing the initiation of a new shipper review of the antidumping duty order on welded carbon steel pipes and tubes from India, covering the period May 1, 2002, through April 30, 2003. The review covered Surya Roshni, Ltd. On August 25, 2003, the request was withdrawn subsequent to the initiation of the new shipper review and, therefore, we are rescinding this review.
Minoo Hatten or Mark Ross at (202) 482-1690 and (202) 482-4794, respectively, AD/CVD Enforcement III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230.
The notice announcing the antidumping duty order on welded carbon steel pipes and tubes from India was published on May 12, 1986 (51 FR 17384). On May 30, 2003, we received a request for a new shipper review of the antidumping duty order on welded carbon steel pipes and tubes from India from Surya Roshni Ltd. (Surya). Pursuant to section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(d)(1), we initiated a new shipper review on July 3, 2003, for shipments of welded carbon steel pipes and tubes from India produced and exported by Surya (68 FR 39897). Surya withdrew its request for a new shipper review on August 25, 2003.
Section 19 CFR 351.214(f)(1) provides that the Department of Commerce may rescind a new shipper review if the party that requested the review withdraws its request for review within sixty days of the date of publication of
Bonding is no longer permitted to fulfill security requirements for shipments of welded carbon steel pipes and tubes from India produced and exported by Surya, entered, or withdrawn from warehouse, for consumption in the United States on or after the publication of this rescission notice in the Federal Register.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO material or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions.
This notice is published in accordance with section 751(a) of the Act and 19 CFR 351.214(f)(3).
Notice of application.
The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, Department of Commerce, has received an application for an Export Trade Certificate of Review. This notice summarizes the conduct for which certification is sought and requests comments relevant to whether the Certificate should be issued.
Jeffrey C. Anspacher, Director, Office of Export Trading Company Affairs, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or by E-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) (the “Act”) 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 Act 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 a 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 copies, plus two 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 03-00005.” A summary of the application follows.
American Commodity Company, LLC seeks a Certificate to cover the following specific Export Trade, Export Markets, and Export Trade Activities and Methods of Operation.
U.S. rice and rice products (rough rice, brown rice, milled, undermilled or unpolished rice, coated rice, oiled rice, enriched rice, rice bran, rice polish, head rice, broken rice, secondhead rice, brewers rice, screenings, rice flour, and rice hulls).
Technology Rights, including, but not limited to: patents, trademarks, service marks, copyrights, trade secrets and know-how that relate to Products.
Export Trade Facilitation Services, including but not limited to, arranging and coordinating delivery of rice to port of export, arranging for inland and/or ocean transportation, allocating rice to vessel; arranging for storage space at port; arranging for warehousing, stevedoring, wharfage, handling, inspection, fumigation, quality control, financing, freight forwarding, insurance and documentation; reviewing letters of credit; invoicing foreign buyer; collecting payment; and arranging for payment of applicable brokerage fees and commissions.
The Export Markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
With respect to the sale of Products, licensing of Technology Rights, and provisions of Export Trade Facilitation Services, under its proposed Export Trade Certificate of Review, the American Commodity Company, LLC may:
(a) Exchange information with suppliers individually regarding availability of and prices of rice available for sale to export, inventories, production and delivery schedules in order to determine availability of rice for purchase and for export and to coordinate export of U.S. rice;
(b) Solicit offers from suppliers to sell rice to American Commodity Company, LLC for a specific export opportunity;
(c) Obtain agreements from suppliers to offer/sell rice through the certified
(d) Establish prices, quantities and terms for sales of rice in export markets;
(e) Solicit orders from potential foreign distributors and purchasers of U.S. rice for delivery to export markets;
(f) Submit offers to potential distributors and purchasers for sale of U.S. rice for delivery to export markets;
(g) Negotiate and enter into agreements for sale of U.S. rice in export markets;
(h) Enter into agreements to purchase U.S. rice from one or more suppliers to fulfill a specific sales commitment, which may be agreements whereby suppliers agree to sell exclusively to American Commodity Company, LLC for delivery in a particular export market or markets and/or whereby American Commodity Company, LLC agrees to purchase exclusively from particular supplier(s) for resale of U.S. rice in a particular export market or markets;
(i) Enter into agreements with one or more export trade intermediaries or purchasers for their purchases of U.S. rice which may be agreements whereby American Commodity Company, LLC agrees to deal exclusively with a given customer and/or by which that customer agrees to deal exclusively with American Commodity Company, LLC and/or agrees not to purchase from competitors of the American Commodity Company, LLC unless authorized by American Commodity Company, LLC to do so;
(j) Allocate sales of U.S. rice and/or distribute export orders among suppliers on any basis American Commodity Company, LLC deems appropriate;
(k) Act as broker and/or operate as sub-contractor to suppliers and possibly taking title to U.S. rice;
(l) Utilize applicable export assistance and incentive programs which are available to American Commodity Company, LLC within the government and trade sectors;
(m) Provide and/or arrange for the provision of Export Trade Facilitation Services;
(n) Use its discretion, in good faith, to purchase rice or provide information regarding export sales of rice to any suppliers or other entities of its choosing, for any reason the American Commodity Company, LLC deems appropriate;
(o) Use its discretion, in good faith, to sell rice, quote prices for rice, provide information regarding rice, or to market or sell rice to any distributors or purchasers of its choosing in export markets or in any countries or geographic areas in export markets; and
(p) Meet with suppliers or other entities periodically to discuss general matters specific to exporting U.S. rice (not related to price and supply arrangements between applicant and the individual suppliers) such as relevant facts concerning export markets (
“Supplier” means a person who produces, provides or sells a Product.
National Institute of Standards and Technology, Department of Commerce.
Notice of partially closed meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that the Judges Panel of the Malcolm Baldrige National Quality Award will meet Thursday, September 18, 2003. The Judges Panel is composed of nine members prominent in the field of quality management and appointed by the Secretary of Commerce. The purpose of this meeting is to review the consensus process, select applicants for site visits, determine possible conflict of interest for site visited companies, review feedback to first stage applicants, begin stage III of the judging process, a debriefing on the State and Local Workshop and a program update. The applications under review contain trade secrets and proprietary commercial information submitted to the Government in confidence. All visitors to the National Institute of Standards and Technology site will have to pre-register to be admitted. Anyone wishing to attend this meeting must register 48 hours in advance in order to be admitted. Please submit your name, time of arrival, email address and phone number to Virginia Davis no later than Monday, September 15, 2003, and she will provide you with instructions for admittance. Ms. Davis' e-mail address is
The meeting will convene September 18, 2003 at 9 a.m. and adjourn at 3 p.m. on September 18, 2003. It is estimated that the closed portion of the meeting will last from 9 a.m. until 2 p.m. and the open portion of the meeting will last from 2 p.m. until 3 p.m.
The meeting will be held at the National Institute of Standards and Technology, Building 222, Red Training Room, Gaithersburg, Maryland 20899. Please note admittance instructions under
Dr. Harry Hertz, Director, National Quality Program, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number (301) 975-2361.
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on December 3, 2002, that part of the meeting of the Judges Panel will be closed pursuant to section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. app. 2, as amended by section 5(c) of the Government in the Sunshine Act, Public Law 94-409. The meeting, which involves examination of Award applicant data from U.S. companies and a discussion of this data as compared to the Award criteria in order to recommend Award recipients, may be closed to the public in accordance with section 552b(c)(4) of Title 5, United States Code, because the meetings are likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
The North Pacific Fishery Management Council (Council) and its advisory committees will hold public meetings.
The North Pacific Fishery Management Council (Council) and its advisory committees will hold public meetings in Anchorage.
The meetings will be held on October 6 through October 14, 2003. See
The meetings will be held at the Sheraton Hotel, 401 E 6th Avenue, Anchorage, AK.
Council staff, telephone: 907-271-2809.
The Council's Advisory Panel will begin at 8 a.m., Monday, October 6 and continue through Saturday, October 11, 2003. The Scientific and Statistical Committee will begin at 8 a.m. on Monday, October 6, and continue through Wednesday, October 11, 2003. The Enforcement Committee will meet Tuesday, October 7, at 6:30 p.m.
The Council will begin its plenary session at 8 a.m. on Wednesday, October 8 continuing through Wednesday October 14.
1. Reports
(a) Executive Director's Report
(b) NMFS Management/Enforcement Reports
(c) United States Coast Guard Report
(d) Alaska Department Fish & Game Reports
2. Gulf of Alaska Rationalization (GOA): Receive report from Joint Protocol Committee; review discussion paper on GOA crab/salmon bycatch and take action as necessary; review staff discussion paper on alternatives and options, open access fisheries, License Limitation Program transfers and catch history, allocation of community shares, observer issues, and Environmental Impact Statement (EIS) alternatives.
3. Community Development Quota (CDQ) Issues: Review proposed appeals process; review discussion paper on eligible CDQ communities.
4. Essential Fish Habitat (EFH)/Habitat Areas of Particular Concern (HAPC): Preliminary review of EIS; finalize HAPC process.
5. Improved Retention/Improved Utilization (IR/IU): Receive Committee report and finalize alternatives for Amendment A.
6. Steller Sea Lion (SSL): Receive SSL Mitigation Committee report and discuss next steps.
7. Halibut Subsistence: Discuss subsistence regulations (data collection, sale, gear regulations); finalize action on Ninilchik eligibility; discuss petitions from other communities.
8. Groundfish Management: Discuss Aleutian Island pollock fishery management; receive report on F40 recommendations; receive report from non-target species committee; review preliminary Stock Assessment and Fishery Evaluation (SAFE) report; set initial groundfish specifications for 2004; take final action on Total Allowable Catch (TAC)-setting process; review discussion paper on repeal of Vessel Incentive Program (VIP).
9. Crab Management: Review Bering Sea Aleutian Island Crab SAFE report; take final action on Pribilof blue king crab rebuilding plan.
10. Staff Tasking: Receive report from Individual Fishing Quota (IFQ) Implementation and Cost Recovery Committee, and review IFQ proposals received; review tasking and provide direction to staff, and discuss direction to Committees.
11. Other Business.
Although non-emergency issues not contained in this agenda may come before this Council for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, these issues may not be the subject of formal Council action during the meeting. Council action will be restricted to those issues specifically identified in the agenda listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
1. C-3 Essential Fish Habitat
2. C-5 Steller Sea Lion
3. D-1(b-f) Groundfish Management
4. D-2 Crab Management
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at 907-271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The North Pacific Fishery Management Council's (Council) Non-Target Species Committee will hold a public meeting.
The meeting will be held on October 9, 2003, at 6 p.m., Ballroom C.
The meeting will be held at the Sheraton Hotel, 401 East 6th Avenue, Yukon Room, Anchorage, AK.
Jane DiCosimo, Council staff, telephone: (907) 271-2809.
The Non-Target Species Committee will hold an organizational meeting to review technical recommendations on management of non-target groundfish species by the ad hoc working group and to identify appropriate alternative management approaches. The proposed terms of reference for this committee include identification of efficient methods for monitoring non-target catch, improving abundance estimates of non-target species, and development of harvest recommendations that build sustainable populations of non-target species. Another meeting of the committee will be scheduled before the end of 2003.
Although non-emergency issues not contained in this agenda may come
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at 907-271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The North Pacific Fishery Management Council (Council) IFQ Implementation and Cost Recovery Committee will hold a public meeting.
The meeting will be held on October 5, 2003, 9 a.m. to 5 p.m.
The meeting will be held at the Sheraton Hotel, 401 East 6th Avenue, Yukon Room, Anchorage, AK.
Jane DiCosimo, Council staff, telephone: (907) 271-2809.
The meeting will be held to (1) Review commercial IFQ proposals from 1999 and recent proposals; (2) discuss sale of subsistence halibut.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at 907-271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Receipt of applications.
Notice is hereby given of the following actions regarding permits for takes of shortnose sturgeon (
NMFS has received permit applications from Michael F. Mangold, U.S. Fish and Wildlife Service, Maryland Fisheries Resource Office, 177 Admiral Cochrane Drive, Annapolis, Maryland 21401(File No. 1444); and the South Carolina Department of Natural Resources (Dr. Mark Collins, Principal Investigator), 217 Fort Johnson Road, Charleston, South Carolina 29412 (File No. 1447). NMFS has received a request to modify a permit application from Douglas Peterson, Ph.D, Warnell School of Forest Resources (Fisheries Division), University of Georgia, Athens, Georgia 30602 (File No. 1420).
Written or telefaxed comments must be received on or before October 9, 2003.
The application and related documents are available for review upon written request or by appointment in the following office(s):
All documents: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)713-0376.
For File No. 1444: Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298; phone (978)281-9200; fax (978)281-9371; and
For File No. 1420 and File No. 1447: Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432; phone (727)570-5301; fax (727)570-5320.
Jennifer Jefferies or Sarah Wilkin, (301)713-2289.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
Mr. Mangold (File No. 1444) seeks authorization to sample and track shortnose sturgeon for two projects: one project would be conducted in the Potomac River and the second would be conducted in the Delaware River, the Chesapeake Bay and its tributaries. For the Potomac River project, up to 50 fish would be taken annually via gill, pound, fyke and trammel netting, measured, weighed, PIT tagged, tissue samples will be taken, and the fish subsequently released. A subset of 20 fish annually would also be T-bar and CART tagged and have a temperature/depth datalogger attached. Additionally, Mr. Mangold would also use D-traps to collect up to 2500 shortnose sturgeon eggs annually. This research would be conducted from 2004-2006. For the second project, Mr. Mangold proposes to capture via gill and trammel net, measure, weigh, tag with PIT and T-bar tags, take a tissue and blood sample of, biopsy gonads of and release 50 fish annually. A subset of 10 fish annually would also have sonic transmitters attached before release and subsequently tracked. This project would be conducted from 2004-2009. A total of 5 incidental mortalities between both projects is requested.
The South Carolina Department of Natural Resources (File No. 1447) seeks authorization to sample and track shortnose sturgeon, in South Carolina coastal waters. Annually, up to 100 fish would be taken via gill nets and trawls, measured, weighed, PIT tagged, and the fish subsequently released. A subset of
A notice of receipt of an application from Dr. Douglas Peterson (File No. 1420) to take shortnose sturgeon, for scientific research was published on March 11, 2003 (68 FR 11533). Dr. Peterson sought authorization to sample and track shortnose sturgeon in the Altamaha River in Georgia for five years. Annually, up to 200 fish were to be taken via gill and trammel netting, measured, weighed, PIT and Carlin tagged, tissue and pectoral fin ray samples taken, and the fish subsequently released. Additionally, up to 10 of the total fish sampled annually were to also receive an internal radio-sonic transmitter. Dr. Peterson also proposed to deploy artificial substrate samplers from February to mid-March to collect up to 100 shortnose sturgeon eggs annually. Dr. Peterson now proposes to increase the number of fish receiving an internal radio-sonic transmitter from 10 individuals to 30.
Written comments or requests for a public hearing on this application should be mailed to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular request would be appropriate.
Comments may also be submitted by facsimile at (301)713-0376, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period. Please note that comments will not be accepted by e-mail or by other electronic media.National Marine Fisheries Service (NOAA Fisheries), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Bernd Wursig, Ph.D., Professor of Marine Biology, Professor of Wildlife and Fisheries Science, Director, Institute of Marine Life Sciences, Texas A&M University, 4700 Avenue U, Building 303, Galveston, TX 77551 has been issued a permit to take bottlenose dolphins (
The permit and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NOAA Fisheries, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)713-0376; and
Southeast Region, NOAA Fisheries, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432; phone (727)570-5301; fax (727)570-5320.
Jill Lewandowski or Carrie Hubard, (301)713-2289.
On June 17, 2003, notice was published in the
The purpose of the authorized research, as stated in the application, is to study the behavioral ecology of bottlenose dolphins in the Gulf of Mexico. Research will occur over a five-year period and focus specifically along the Texas and Louisiana coastlines.
The United States Patent and Trademark Office (USPTO) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Susan K. Brown, Records Officer, Office of the Chief Information Officer, Office of Data Architecture and Services, Data Administration Division, 703-308-7400, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313, Attn: CPK 3 Suite 310; or by e-mail at
Written comments and recommendations for the proposed information collection should be sent on or before October 9, 2003 to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
The United States Patent and Trademark Office (USPTO) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Susan K. Brown, Records Officer, Office of the Chief Information Officer, Office of Data Architecture and Services, Data Administration Division, 703-308-7400, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313, Attn: CPK 3 Suite 310; or by e-mail at
Written comments and recommendations for the proposed information collection should be sent on or before October 9, 2003 to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, 725 17th Street NW., Washington, DC 20503.
The United States Patent and Trademark Office (USPTO) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Susan K. Brown, Records Officer, Office of the Chief Information Officer, Office of Data Architecture and Services, Data Administration Division, 703-308-7400, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313, Attn: CPK 3 Suite 310; or by e-mail at
Written comments and recommendations for the proposed information collection should be sent on or before October 9, 2003 to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, 725 17th Street NW., Washington, DC 20503.
The United States Patent and Trademark Office (USPTO) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Susan K. Brown, Records Officer, Office of the Chief Information Officer, Office of Data Architecture and Services, Data Administration Division, 703-308-7400, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313, Attn: CPK 3 Suite 310; or by e-mail at
Written comments and recommendations for the proposed information collection should be sent on or before October 9, 2003 to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
The United States Patent and Trademark Office (USPTO) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Susan K. Brown, Records Officer, Office of the Chief Information Officer, Office of Data Architecture and Services, (703) 308-7400, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313, Attn: CPK 3 Suite 310, or by e-mail at
Written comments and recommendations for the proposed information collection should be sent on or before October 9, 2003, to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
The United States Patent and Trademark Office (USPTO) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The United States Patent and Trademark Office (USPTO), together with the Secretary of Health and Human Services and the Department of Agriculture, administers the Federal Food, Drug and Cosmetic Act, 35 U.S.C. 156. This Act permits the USPTO to restore the patent term lost due to certain types of regulatory review by the Federal Food and Drug Administration or the Department of Agriculture. Only patents for drug products, medical devices, food additives, and color additives are eligible for extension. The maximum length that a patent may be extended (the maximum of patent term that may be restored) is five years.
Under 35 U.S.C. 156, the USPTO extends the term of various patents past their original expiration dates, grants interim extensions, reviews applications for patent term extension and final eligibility decisions, obtains additional information from the public that might influence the extension of the patent term, and withdraws applications for patent term extensions. The USPTO administers 35 U.S.C. 156 through 37 CFR 1.705-1.791, which permits the public to submit applications to the USPTO to extend the patent term past its original expiration date; to petition for reviews of informal extensions of applications, final eligibility decisions, and interim extensions; and to withdraw an application requesting a patent term extension after it is submitted.
Use of the USPTO's information allows the Director of the USPTO, the Secretary of Health and Human Services, and the Secretary of Agriculture to access the information required to determine whether the applicant is eligible for a patent term extension or reconsideration of patent term adjustment determination and, if so, the period of the extension or adjustment.
Copies of the above information collection proposal can be obtained by calling or writing Susan K. Brown, Records Officer, Office of the Chief Information Officer, Office of Data Architecture and Services, Data Administration Division, 703-308-7400, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313, Attn: CPK 3 Suite 310; or by e-mail at
Written comments and recommendations for the proposed information collection should be sent on or before October 9, 2003, to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
The United States Patent and Trademark Office (USPTO) has
Copies of the above information collection proposal can be obtained by calling or writing Susan K. Brown, Records Officer, Office of the Chief Information Officer, Office of Data Architecture and Services, Data Administration Division, 703-308-7400, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313, Attn: CPK 3 Suite 310; or by e-mail at
Written comments and recommendations for the proposed information collection should be sent on or before October 9, 2003, to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, 725 17th Street NW., Washington, DC 20503.
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection adjusting limits.
September 9, 2003.
Roy Unger, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the Bureau of Customs and Border Protection website at http://www.customs.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://www.otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for certain categories are being adjusted for carryover and swing.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on September 3, 2002, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool and man-made fiber textile products, produced or manufactured in Brazil and exported during the twelve-month period which began on January 1, 2003 and extends through December 31, 2003.
Effective on September 9, 2003, you are directed to adjust the current limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by September 24, 2003.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 03-C0004, Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207.
Belinda V. Bell, Trial Attorney, Office of Compliance, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-7592.
The text of the Agreement and Order appears below.
1. Blue Coral-Slick 50, Inc. (hereinafter, “Blue Coral” or “Respondent”), enters into this Settlement Agreement and Order (hereinafter, “Settlement Agreement” or “Agreement”) with the staff of the Consumer Product Safety Commission, and agrees to the entry of the attached Order incorporated by reference herein. The purpose of the Settlement Agreement is to settle the staff's allegations that Blue Coral knowingly failed to comply with section 3 of the Poison Prevention Packaging Act (PPPA) and violated sections 4(a) and (c) of the Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1263(a) and (c).
2. The Commission is an independent federal regulatory agency responsible for the enforcement of the Federal Hazardous Substances Act (“FHSA”), 15 U.S.C. 1261-1278, and the Poison Prevention Packaging Act (“PPPA”), 15 U.S.C. 1471-76.
3. Blue Coral is a corporation, organized and existing under the laws of the State of Delaware, with its principal office located at 700 Milam Street, Houston, Texas.
4. On numerous occasions between September 1998 and August 2001, Blue Coral introduced or caused the introduction into interstate commerce; and received in interestate commerce and delivered or proffered delivery thereof for pay or otherwise, approximately 1 million Rain-X® brand products containing 6% methanol in non-child resistant containers. These products are described as follows: Rain-X® Super Glass Cleaner Concentrate in 10 oz and 16.9 oz bottles; Rain-X® Washer Fluid Concentrate in 10 oz, 16.9 oz, and 1.2 oz pouches; and Rain-X® Washer Fluid Additive in 2 oz pouches.
5. The products identified in paragraph 4 above failed to comply with the Commission's Poison Prevention Packaging Regulation which requires that household substances in liquid form containing 4 percent or more of methanol must be packaged in child resistant packaging.
6. The subject products are misbranded hazardous substances pursuant to section 2(p) of the FHSA, 15 U.S.C. 1261.
7. These misbranded hazardous substances presented in ingesting hazard which could cause blindness, serious illness or death to children.
8. Blue Coral knowingly introduced or caused the introduction into interstate commerce; and received in interstate commerce and delivered or proffered delivery thereof for pay or otherwise, the misbranded hazardous substances, described in paragraph 4 above, as the term knowingly is defined in section 5(c)(5) of the FHSA, in violation of sections 4(a) and (c) of the FHSA, 15 U.S.C. 1263(a) and (c) and is subject to civil penalties under section 5(c)(1) of the FHSA.
9. Blue Coral denies the staff allegations in paragraph 4 through 8, above. Blue Coral denies that it violated the FHSA, the PPPA or any other law, regulation or other requirement.
10. Blue Coral states that it notified the Commission and undertook a voluntary recall in this matter, in cooperation with the Commission, promptly upon learning of the alleged failures described in paragraph 4-8, and took action to ensure that the products are packaged in accordance with the PPPA.
11. The Consumer Product Safety Commission has jurisdiction over Blue Coral and the subject matter of this Settlement Agreement and Order under the FHSA, 15 U.S.C. 1261-1278.
12. This Agreement is entered into for settlement purposes only and does not constitute an admission by Blue Coral or a determination by the Commission that Blue Coral knowingly violated the FHSA or the PPPA.
13. Blue Coral agrees to pay to the U.S. Treasury a civil penalty in the amount of one hundred fifty thousand and 00/100 dollars ($150,000.00), in full settlement of this matter, payable within twenty (20) calendar days of receiving service of the final Settlement Agreement and Order.
14. Blue Coral knowingly, voluntarily and completely waives any rights it may have in the above captioned case (i) to the issuance of a Complaint in this matter; (ii) to an administrative or judicial hearing with respect to the staff allegations cited herein; (iii) to judicial review or other challenge or contest of the validity of the Settlement Agreement or the Commission's Order; (iv) to a determination by the Commission as to whether a violation has occurred with respect to Section 4 of the FHSA, 15 U.S.C. 1263; (v) to a statement of findings of fact and conclusions of law with regard to the staff allegations; and (vi) to any claims under the Equal Access to Justice Act.
15. Upon provisional acceptance of this Settlement Agreement and Order by the Commission, this Settlement Agreement and Order shall be placed in the public record and shall be published in the
16. The Settlement Agreement and Order shall become effective upon its final acceptance by the Commission and service of the final Order upon Blue Coral.
17. Upon provisional acceptance by the Commission, the Commission may publicize the terms of the Settlement Agreement and Order.
18. Blue Coral agrees to the entry of the attached Order, which is incorporated herein by reference, and agrees to be bound by its terms.
19. If, after the effective date hereof, any provision of this Settlement Agreement and Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Settlement Agreement and Order, such provision shall be fully severable. The rest of the Settlement Agreement and Order shall remain in full effect, unless the Commission and Blue Coral determine that severing the provision materially affects the purpose of the Settlement Agreement and Order.
20. This Settlement Agreement and Order shall not be waived, changed, amended, modified, or otherwise altered, except in writing executed by the party against whom such amendment, modification, alteration, or waiver is sought to be enforced and approved by the Commission.
21. This Settlement Agreement may be used in interpreting the Order. Agreements, understandings, representations, or interpretations made outside of this Settlement Agreement and Order may not be used to vary or contradict its terms.
22. The provisions of this Agreement and Order shall apply to, and inure to the benefit of, Respondent, its successors and assigns, agents, representatives, and employees, directly or through any corporation, subsidiary, division or other business entity, or through any agency, device or instrumentality.
Upon consideration of the Settlement Agreement between Respondent Blue Coral-Slick 50 Inc., a corporation, and the staff of the Consumer Products Safety Commission, and the Commission having jurisdiction over the subject matter and over Blue Coral, and it appearing that the Settlement Agreement is in the public interest, it is Ordered that the Settlement Agreement be, and hereby is, accepted and it is Further Ordered that Blue-Coral Slick 50 Inc. shall pay the United States Treasury a civil penalty in the amount of one hundred fifty thousand and 00/100 dollars, ($150,000.00), payable within twenty (20) days of the service of the Final Order upon Blue Coral-Slick 50.
By Order of the Commission:
Office of the Under Secretary of Defense (Personnel and Readiness), DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces the following proposed reinstatement of a public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of 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 information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by November 10, 2003.
Written comments and recommendations on the proposed information collection should be sent to the Office of the Under Secretary of Defense (Personnel and Readiness), ODUSD (PI)/Defense Human Resources Activity, ATTN: Ms. Heidi Boyd, 4040 Fairfax Boulevard, Suite 200, Arlington VA 22203.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the above address or call (703) 696-0404.
The Department of Defense, over the past three years, has been taking requisite measures to enhance physical and information security and applying prudent countermeasures for all potential vulnerabilities focusing on security actions to address the changes in today's threat environment. The Assistant Secretary of Defense for Command, Control, Communications and Intelligence (C3I) August 12, 2000 memorandum, Subject: Department of Defense (DoD) Public Key Infrastructure (PKI), directed use of a common, integrated, interoperable DoD PKI to enable security services at multiple levels of assurance. PKI is a key and certificate management infrastructure designed to support confidentiality, integrity, availability, authorization, and access control in computer networks. It is imperative to the security of the nation's defense that the systems of the Department of Defense be PKI-enabled as soon as possible. This data collection is essential to the effort to prohibit access to the Departments' systems to those not authorized. Public Law 106-65, Section 373 directed the Department to develop and implement a Smart Card
This information collection is required to obtain the necessary data to establish eligibility for the CAC for those individuals not pre-enrolled in the DEERS, and to maintain a centralized database of eligible individuals.
United States Military Cancer Institute.
8:30 a.m. to 3 p.m., November 12, 2003.
Eisenhower Suite, WRAMC, 6900 Georgia Ave, NW., Washington DC 20307.
Open—under “Government in the Sunshine Act” (5 U.S.C. 552b(e)(3)).
USMCI goals and objectives.
Mr. William Mahr, Associate Director for Administration—USMCI, (202) 782-0552.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Savannah River. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Monday, September 22, 2003, 12:15 p.m.-5:15 p.m.; Tuesday, September 23, 2003, 8:30 a.m.-4 p.m.
Houndslake, 1900 Houndslake Drive, Aiken, SC 29803.
deLisa Bratcher, Closure Project Office, Department of Energy Savannah River Operations Office, P.O. Box A, Aiken, SC, 29802; Phone: (803) 952-8607.
If needed, time will be allotted after public comments for items added to the agenda, and administrative details. A final agenda will be available at the meeting Monday, September 22, 2003.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Chairs Meeting. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires
September 26-27, 2003.
Courtyard Marriott, 3835 Technology Drive, Paducah, KY 42001.
Dianna Feireisel, Deputy Designated Federal Officer, Department of Energy Paducah Site Office, Post Office Box 1410, Paducah, Kentucky 42001, (270) 441-6806.
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of Section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments on the collection of information are due by October 31, 2003.
Copies of the proposed collection of information can be obtained from Michael Miller, Office of the Executive Director, ED-30, 888 First Street, NE., Washington, DC 20426. Comments on the proposed collection of information may be filed either in paper format or electronically. Those parties filing electronically do not need to make a paper filing. For paper filings, the original and 14 copies of such comments should be submitted to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 and should refer to Docket No. IC03-592-000.
Documents filed electronically via the Internet can be prepared in a variety of formats, including WordPerfect, MS Word, Portable Document Format, Rich Text Format or ASCII format. To file the document, access the Commission's Web site at
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the eLibrary link. For user assistance, contact
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873 and by e-mail at
The information collected under the requirements of FERC Form No. 592, “Marketing Affiliates of Interstate Pipelines” (OMB No. 1902-0157) is used by the Commission to implement the statutory provisions of Sections 4, 5, 7, 8, 10, 14, 16 and 20 of the Natural Gas
The information under FERC Form 592 applies only to those major natural gas pipelines involved in transactions with affiliated marketing or brokering companies. In Order No. 497, 53 FR 22161, June 14, 1988, the Commission addressed possible abuses in the relationship between interstate natural gas pipelines and their marketing or brokering entity. The rule established standards of conduct and reporting requirements intended to prevent preferential treatment of an affiliated marketer by an interstate pipeline in the provision of transportation services. In Order No. 637, 65 FR 10219, February 25, 2000, the Commission in response to growing competition in the natural gas marketplace and to further ensure that it could monitor transactions for the exercise of marketpower revised its reporting requirements. These provisions have improved the availability and usefulness of the information reported. Under these revisions, periodic reporting to the Commission was reduced and instead a greater reliance was placed on Internet posting and information maintenance. Specifically with regard to interstate pipelines and their affiliates, respondents have to post the list of names of operating personnel and facilities shared by the interstate pipeline and its marketing affiliate plus organizational charts and job descriptions were also to be posted with specified information. Respondents also have to file with the Commission a set of procedures to show compliance with the Commission's standards of conduct; maintain books of accounts and records separate from those of its affiliate; contemporaneously inform all potential shippers of information provided to marketing affiliates about the transportation of natural gas; maintain a log of waivers that the pipeline grants with respect to tariff provisions that provide for discretionary waivers and make the log available within a 24-hour period from when a request is made; and contemporaneously provide to similarly situated non-affiliated shippers the same transportation discount that it made to an affiliated marketer.
The information maintained and provided by respondents is used by the Commission to monitor pipelines' transportation and sales activities for their marketing affiliates to deter undue discrimination by pipeline companies in favor of their marketing affiliates. These reporting requirements act to deter undue discrimination and preference, and permit the market to monitor and self-police affiliate transactions. The information is also used by nonaffiliated shippers or others (such as state commissions) to determine whether they have been harmed by affiliate preference and, in some cases, to prepare evidence for formal proceedings following the filing of a complaint. The Commission implements these filings requirements in the Code of Federal Regulations (CFR) under 18 CFR section 161.3 and section 250.16.
Estimated cost to respondents: 4,409 hours ÷ 2,080 per year x $117,041 = $248,093. The cost per respondent = $3,353. The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purpose of collection, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) 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; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information 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,
Take notice that Columbia Gas Transmission Corporation (Columbia), filed on July 30, 2003, an abbreviated application pursuant to Sections 7(b) and 7(c) of the Natural Gas Act, as amended, to abandon its storage injection/withdrawal Well 12028 and associated well line segment SR-W12028 consisting of 0.17 mile of 3-inch and 4-inch pipeline and to construct new injection Well 12422 and
Any questions regarding this application should be directed to Fredric J. George, Esquire, Attorney for Columbia Gas Transmission Corporation, P.O. Box 1273, Charleston, West Virginia 25325-1273, at (304) 357-2359, fax (304) 357-3206.
Columbia states that Well 12028 is experiencing the flooding of salt water into the storage zone reservoir and believes that the abandonment of the well and the construction of a replacement well, Well 12422, will protect the integrity of the reservoir, as well as allow Columbia to continue to meet the deliverability and turnover requirements of the Crawford Storage Field.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date, stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of ll documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Protests, comments, and interventions may be filed electronically via the Internet in lieu of paper.
Take notice that on August 26, 2003, Columbia Gas Transmission Corporation (Columbia Gas) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Substitute Second Revised Sheet No. 410, with a proposed effective date of August 15, 2003.
Columbia Gas states that on July 14, 2003, it filed revised tariff sheets to clarify obligations with respect to the construction and installation of meters and measuring stations and to clarify obligations with respect to the responsibility for payment of the cost of the construction and installation of those facilities. On August 11, 2003, the Commission accepted Columbia Gas' proposed revised tariff sheets subject to conditions (August 11 Order), Nicole Gas Production Ltd., 104 FERC ¶ 61,193 (2003). The Commission required that Columbia Gas make revisions to a tariff sheet within 15 days of the date of issuance of the August 11 Order. As directed by the Commission in the August 11 Order, Columbia Gas submitted the revised tariff sheet identified above. Columbia states that the revised tariff sheet reflects the changes required by the Commission in the August 11 Order.
Columbia Gas states that copies of its filing have been mailed to all firm customers, interruptible customers, and affected state commissions.
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. Protest 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
Take notice that on August 22, 2003, Northwest Pipeline Corporation (Northwest), 295 Chipeta Way, Salt Lake City, Utah 84158, filed in Docket No. CP01-49-003, an amendment to the pending application filed June 25, 2003, pursuant to sections 7(b) and (c) of the Natural Gas Act (NGA), as amended, and part 157 of the regulations of the Federal Energy Regulatory Commission (Commission), for authorization to amend the certificate of public convenience and necessity that was issued for its “Everett Delta Lateral Project” project by Commission order dated October 25, 2001 in Docket Nos. CP01-49-000 and CP01-49-001 and to request related permission and approval for pre-granted abandonment, all as more fully set forth in the amendment which is on file with the Commission and open to public inspection. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Northwest states that by this amendment to the pending amended application, Northwest requests that the Commission approve the Holly Lane Reroute between mileposts 1.16 and 1.78 in Snohomish County, Washington of the proposed Everett Delta Lateral in lieu of the originally proposed crossing of Catherine Creek by horizontal directional drill between mileposts 1.2 and 1.52.
Any questions concerning this amendment may be directed to Gary K. Kotter, Manager, Certificates and Tariffs, Northwest Pipeline corporation, P. O. Box 58900, Salt Lake City, Utah 84158-0900, at (801) 584-7117 or fax (801) 584-7764.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10) by the comment date, below. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Protests and interventions may be filed electronically via the Internet in lieu of paper;
Take notice that on August 26, 2003, SCG Pipeline, Inc. (SCG), P.O. Box 102407, Columbia, South Carolina 29224-2407, filed in Docket No. CP02-57-005, an amendment to its certificate application pursuant to Section 7(c) of the Natural Gas Act (NGA), as amended, and part 157 of the regulations of the Federal Energy Regulatory Commission (Commission), for authorization to amend the certificate of public convenience and necessity issued to SCG on September 20, 2002, approving construction of its proposed facilities, including the Port Wentworth Meter Station, located in Chatham County, Georgia, all as more fully set forth in the amendment which is on file with the Commission and open to public inspection. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
SCG states that the purpose of this amendment is to request a change in the ownership percentage of the Port Wentworth meter and regulating station to reflect the fact that this meter station is now jointly owned with Southern Natural Gas Company (Southern Natural). As a result of this joint ownership, SCG states that it will have a sixty-one and one-tenth percent (61.1%) ownership interest in the Port Wentworth Meter Station, with Southern Natural owning the remaining thirty-eight and nine-tenths percent (38.9%) ownership interest in the meter station. SCG states that Southern Natural has already filed to amend its certificate in Docket No. CP02-1-000 to reflect this amended ownership in the Port Wentworth Meter Station and this amendment was approved by the Commission on February 28, 2003.
Any questions concerning this amendment may be directed to Troy Blalock, Project Manager, SCG Pipeline, Inc., 105 New Way Road, Columbia, South Carolina 29223, at (803) 217-1811, or fax (803) 217-2104.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10) by the comment date, below. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Protests and interventions may be filed electronically via the Internet in lieu of paper;
Take notice that on August 26, 2003, Southern Star Central Gas Pipeline, Inc. (Southern Star), 3800 Frederica Street, Owensboro, Kentucky 42301, filed in Docket No. CP03-349-000, an application pursuant to Section 7(b) of the Natural Gas Act (NGA) as amended, and part 157 of the regulations of the Federal Energy Regulatory Commission (Commission), for permission and approval to abandon compression facilities in Johnson County, Missouri, all as more set forth in the application which is on file with the Commission and open to public inspection
Southern Star proposes to abandon five 170 horsepower compressor units and appurtenant facilities, auxiliary equipment at the Knob Noster compressor station in Johnson County. It is stated that the compressor station was constructed in 1949 and utilized to compress gas into the Carrollton/Marshall 8-inch system. It is stated that the facilities are now obsolete due to piping constraints and that the compression is insufficient reliably meet volume demand during peak periods. It is explained that the facilities are no longer needed because the newer, more efficient 800 horsepower unit at the Concordia compressor station now serves the Carrollton/Marshall system and provides adequate compression during peak periods. Southern Star proposes to abandon the facilities by reclaim with the exception of an equipment storage warehouse which would continue to be used. It is asserted that Southern Star would continue to own and operate the property that the compressor station proposed for abandonment stands on.
Any questions concerning this application may be directed to David N. Roberts, Manager, Regulatory Affairs, at (270)852-4654.
This filing is available for review at the Commission or may be viewed on the Commission's Web site at
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper.
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on August 25, 2003, the California Independent System Operator Corporation (ISO), submitted a filing in compliance with the Commission's July 25, 2003 Order in Docket No. ER98-3760-008,
The ISO states that this filing has been served upon all parties in the captioned proceeding, and has been posted on the ISO Home Page.
Take notice that on August 28, 2003, the GridAmerica Participants and the Midwest Independent Transmission System Operator, Inc. (jointly, the Applicants) filed two Acknowledgements in order to make it possible for GridAmerica to commence operations, if necessary, on a phased basis.
The Applicants state that in addition to serving the filing in accordance with the Commission's Regulations, the Midwest ISO has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, Policy Subcommittee participants, as well as all state commissions within the region. In addition, the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on August 26, 2003, Power Contract Financing II, L.L.C. (PCF II), filed an amendment to it application filed July 23, 2003. PCF II states that the amendment corrects a typographical error in the original filing.
Take notice that on August 26, 2003, Power Contract Financing II, Inc. (PCF II, Inc.) filed an amendment to its application filed on July 23, 2003. PCF II, Inc. states that the amendment corrects a typographical error in the original filing.
Take notice that on August 18, 2003, Rail Energy of Montana, LLC, tendered for filing a Notice of Cancellation of its Market-based Rate Authority in Docket No. ER01-1557-000. Rail Energy of Montana, LLC is requesting an effective date of June 30, 2001.
Take notice that on August 26, 2003, Wisconsin Electric Power Company (Wisconsin Electric) tendered for filing a correction to its filing of August 22, 2003 in Docket No. ER03-1240-000 submitting a revised Power Service Agreement between Wisconsin Electric and the City of Crystal Falls, Michigan. Wisconsin Electric states that this filing is to correct two errors in the transmittal letter filed on August 22, 2003. Wisconsin Electric further states that the remainder of the information contained in the August 22 filing is correct.
Take notice that on August 26, 2003, Northeast Utilities Service Company (NUSCO) filed on behalf of its affiliates, The Connecticut Light and Power Company, Western Massachusetts Electric Company, Holyoke Power and Electric Company, Holyoke Water Power Company and Public Service Company of New Hampshire (collectively, the NU Companies) and North Atlantic Energy Corporation, Open Access Transmission Tariff, FERC Electric Tariff No. 10 (Tariff No. 10). NUSCO states that Tariff No. 10 reflects revised transmission service rates for open access transmission service over the NU Operating Companies' transmission facilities and is intended to supersede the existing Open Access Transmission Tariff, FERC Electric Tariff No. 9.
NUSCO requests an effective date of October 27, 2003 for Tariff No. 10. NUSCO states that copies of this filing have been served on all of the NU Operating Companies' transmission customers and to the Connecticut, Massachusetts and New Hampshire state public utility commissions.
Take notice that on August 26, 2003, Puget Sound Energy, Inc. (Puget) submitted for filing the 2003-04 Operating Procedures with respect to the 1997 Pacific Northwest Coordination Agreement ( the 1997 PNCA). Puget states that the 2003-04 Operating Procedures amend the 1997 PNCA.
Puget further states that copies of the filing were served on the parties to the 1997 PNCA.
Take notice that on August 26, 2003, Ameren Services Company (ASC) tendered for filing a Service Agreement for Network Integration Transmission Service and a Network Operating Agreement between ASC and Constellation NewEnergy Corporation (Customer). ASC asserts that the purpose of the Agreement is to permit ASC to provide transmission service to the Customer pursuant to Ameren's Open Access Transmission Tariff.
Take notice that on August 25, 2003, Maine Public Service Company (MPS) submitted for filing an executed Interconnection Agreement Between MPS and PDI New England, Inc. (now known as WPS New England Generation, Inc.). MPS requests an effective date of June 8, 1999, the date on which the agreement was executed.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on August 27, 2003, Meiya Qujing Power Company Limited (MQP), with its principal office at Ugland House, South Church Street, George Town, Grand Cayman, Cayman Islands, filed with the Federal Energy Regulatory Commission (Commission@) an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
MQP states it is a company organized under the laws of Cayman Islands. MQP also states that it will be engaged, directly or indirectly through an affiliate as defined in Section 2(a)(11)(B) of the Public Utility Holding Company Act of 1935 (APUHCA@), exclusively in owning, operating, or both owning and operating, a coal-fired electric generating facility with a total output of approximately 600 megawatts consisting of two steam turbines, two 1,025 ton-per-hour coal-fired boilers and certain additional incidental facilities, located in Qujing, Yunnan province, People's Republic of China. MQP explains it will, through an affiliate, sell electric energy at wholesale from the facility and may engage in other incidental activities with respect thereto consistent with PUHCA.
Take notice that on August 29, 2003, Massachusetts Municipal Wholesale Electric Company (MMWEC), (Complainant), filed a Complaint Requesting Fast Track Processing against the Power Authority of the State of New York (NYPA) pursuant to Sections 206, 207, 306, 307, 20, and 31 of the Federal Power Act and Rules 206, 207, 212 of the Commission's Rules (18 CFR 385.206, 207 and 212). Complainant requests that the Commission take prompt action to extend the current contract between MMWEC and NYPA for power and energy from the St. Lawrence-FDR (Project No. 2000) and the Niagara (Project No. 2216) hydroelectric projects. The current contract, covering sales from both Projects, expires on October 31, 2003. MMWEC states that it is entitled to relief under the Projects' license conditions and pursuant to federal law. Moreover, consumers in Massachusetts will experience irreparable injury, absent an extension of the existing contract. MMWEC further states that its negotiations towards a new replacement contract with NYPA have been fruitless, despite years of effort.
Take notice that on August 29, 2003, Massachusetts Municipal Wholesale Electric Company (MMWEC), (Complainant), filed a Complaint Requesting Fast Track Processing against the Power Authority of the State of New York (NYPA) pursuant to Sections 206, 207, 306, 307, 20, and 31 of the Federal Power Act and Rules 206, 207, 212 of the Commission's Rules (18 CFR 385.206, 207 and 212). Complainant requests that the Commission take prompt action to extend the current contract between MMWEC and NYPA for power and energy from the St. Lawrence-FDR (Project No. 2000) and the Niagara (Project No. 2216) hydroelectric projects. The current contract, covering sales from both Projects, expires on October 31, 2003. MMWEC states that it is entitled to relief under the Projects' license conditions and pursuant to federal law. Moreover, consumers in Massachusetts will experience irreparable injury, absent an extension of the existing contract. MMWEC further states that its negotiations towards a new replacement contract with NYPA have been fruitless, despite years of effort.
Take notice that on August 27, 2003, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) pursuant to Section 205 of the Federal Power Act and Section 35.13 of the Commission's regulations, 18 CFR 35.13 (2002), submitted for filing a second revised Interconnection and Operating Agreement among GM Transmission, LLC, the Midwest ISO and Northern States Power Company d/b/a Xcel Energy.
Midwest ISO states that a copy of this filing was served on the GM Transmission, LLC and Northern States Power Company d/b/a Xcel Energy.
Take notice that on August 27, 2003, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted for filing proposed revisions to Section 2.6 of its Open Access Transmission Tariff, FERC Electric Tariff, Second Revised Volume No. 1, in compliance with the Commission's July 28, 2003 Order on Rehearing, 104 FERC ¶ 61,148 (2003).
The Midwest ISO has requested the original effective date of December 23, 2002. Midwest has also requested waiver of the service requirements set forth in 18 CFR 385.2010. Midwest ISO states that it has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, as well as all state commissions within the region. In addition, Midwest states that the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on August 27, 2003, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted for filing proposed revisions to Section 41.1 of its Open Access Transmission Tariff, FERC Electric Tariff, Second Revised Volume No. 1, in
The Midwest ISO has requested the original effective date of December 23, 2002. Midwest ISO has also requested waiver of the service requirements set forth in 18 CFR 385.2010. Midwest ISO states that it has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, as well as all state commissions within the region. In addition, Midwest states that the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on August 27, 2003, PJM Interconnection, L.L.C. (PJM) submitted a filing to comply with the Ordering Paragraph C of the Commission's Order issued July 29, 2003, 104 FERC ¶ 61,154.
Take notice that on August 27, 2003, New York State Electric & Gas Corporation (NYSEG) tendered for filing pursuant to the Commission's April 28, 2003 Order in Docket No. ER03-587-000, FERC Rate Schedule 30 between NYSEG and Rochester Gas and Electric Corporation consistent with Order No. 614.
Take notice that on August 18, 2003, Business Discount Plan (BDP) filed a Notice of Cancellation of its market-based rate authority. BDP states that it has never used its market-based rate authority and does not plan to do so in the future.
Take notice that on August 27, 2003, Southern Company Services, Inc. (SCS), acting on behalf of Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Savannah Electric and Power Company (collectively Southern Companies), filed an amendment to the Interchange Contract between Duke Power Company (Duke) and Southern Companies dated December 18, 1991 and designated First Revised Rate Schedule FERC No. 77. SCS states that this revision is made to allow payment for emergency service provided by Southern Companies to Duke under Service Schedule A of that contract to be made pursuant to Southern Companies' market-based rate tariff.
Take notice that on August 27, 2003, Southern California Edison Company (SCE) tendered for filing a Letter Agreement between SCE and the Inland Empire Energy Center, L.L.C (IEEC). SCE states that the purpose of the Letter Agreement is to provide an arrangement pursuant to which SCE will review the California Energy Commission (CEC) Preliminary Staff Assessment (PSA), and later Final Staff Assessment (FSA), of IEEC's application for certification of a 500 kV generation transmission line and associated facilities which would be required to interconnect IEEC's generation project to SCE's electrical system.
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California and IEEC.
Take notice that on August 27, 2003, Aquila, Inc. (Aquila), filed with the Commission, pursuant to Section 205 of the Federal Power Act, 16 U.S.C.824d, and part 35 of the Commission's regulations, 18 CFR 35, Amendatory Agreement No. 3 to the Multiple Interconnection & Transmission Contract between Aquila, Inc. d/b/a Aquila Networks—MPS and Kansas City Power & Light Company, designated as Aquila's Rate Schedule FERC No. 20. Aquila states that this amendment clarifies the existing interconnection point at the Duncan Road Substation. Aquila requests that the amendment be made effective August 28, 2003.
Take notice that on August 27, 2003, FirstEnergy Solutions Corp. (Solutions) tendered for filing a Revised Electric Power Supply Agreement between Solutions, as seller, and The Cleveland Electric Illuminating Company, Ohio Edison Company, Pennsylvania Power Company and The Toledo Edison Company, as buyers (the Agreement). Solutions states that the Agreement has been modified to accommodate a change in the identity of the Transmission Provider that will deliver power being sold pursuant to the Agreement and to implement certain ministerial changes. Solutions has asked for waiver of any applicable requirements in order to make the Agreement effective as of October 1, 2003.
Take notice that on August 27, 2003, Tampa Electric Company (Tampa Electric) tendered for filing the Operating Agreement between Tampa Electric and Florida Power Corporation (FPC) for the Pebbledale-Barcola Interconnection dated August 14, 2003, designated and formatted as a new Tampa Electric rate schedule. Tampa Electric proposes that the new rate schedule be made effective on August 14, 2003.
Tampa Electric states that copies of the filing have been served on FPC and the Florida Public Service Commission.
Take notice that on August 27, 2003, Niagara Mohawk Power Corporation, a National Grid Company (Niagara Mohawk), tendered for filing a First Revised Service Agreement No. 326 (Service Agreement) between Niagara Mohawk and PSEG Power New York Inc. (PSEG) under the New York Independent System Operator's FERC Electric Tariff, Original Volume No. 1. Niagara Mohawk states that under the Service Agreement, it provides interconnection service to PSEG for the Albany Steam Station generating facility.
Take notice that on August 27, 2003, Kloco Corporation tendered for filing notification that GDK Corporation has changed its name to Kloco Corporation.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
On October 25, 2001, the Commission issued Northwest Pipeline Corporation (Northwest) a certificate of public convenience and necessity for the Everett Delta Lateral Project (Order). We
Northwest now requests the Commission to amend the certificate for the project to authorize Northwest to construct approximately 9.19 miles of 16-inch-diameter pipeline (on the certificated route with some variations), instead of 20-inch-diameter pipeline, one meter station, two delivery taps and related facilities designed to provide approximately 113 million decatherms per day of firm transportation service for PSE. The facility differences in the amendment versus the certificated project are: smaller diameter pipeline; 0.19 miles longer pipeline; one less meter station; and small changes to related facilities. We will study the amendments and determine if they are environmentally preferred over the certificated route.
The primary route change involves the certificated route crossing of Catherine Creek by horizontal directional drill (HDD) between mileposts (MPs) 1.2 and 1.52. Geotechnical investigations and site analysis subsequent to the Order have determined that the route through this area has less than a 25 percent probability of success, due to the amount of subsurface gravels and cobbles that would be encountered along the path of the HDD. Northwest has identified a route that would avoid the use of the Catherine Creek HDD—designated the Holly Lane Reroute. The reroute affects the proposed alignment between MPs 1.16 and 1.78 and crosses Catherine Creek at MP 1.32 where a culvert has already been installed. The majority of the reroute would be within the right-of-way of Callow Road and Holly Lane.
This Notice of Intent is to inform the public that staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare a supplemental EA that will discuss the environmental impacts of the Everett Delta Lateral involving construction and operation of facilities by Northwest in Snohomish County, Washington. The EA will focus on the amendments to determine if they affect our original conclusion that the project does not constitute a major Federal action significantly affecting the quality of the human environment. This EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The pipeline company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the project notice Northwest provided to landowners. This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
Northwest proposes to construct:
• Approximately 9.19 miles of 16-inch-diameter pipeline in Snohomish County, Washington, which would tie-in with Northwest's existing mainline and mainline loop at milepost (MP) 1411.3 north of the City of Lake Stevens. The 16-inch-diameter lateral would extend from the interconnect with Northwest's existing system at MP 0.0 and extend to PSE in Everett, Washington;
• The Everett Delta Meter Station (MP 0.0);
• Two downstream delivery taps: the Soper Hill Tap (MP 4.4) and the Everett Tap (MP 9.19); and
• A pig launcher and two 12-inch mainline taps (MP 0.0), block valve assembly (MP 4.4), and a pig receiver (MP 9.19).
The general location of the project facilities is shown in appendix 1.
In total, construction of the project would result in approximately 89 acres of disturbance. Permanent easement for the entire project would result in approximately 50 acres with the remaining 39 acres of land allowed to revert to its former use. A permanent easement is needed for long-term operation and maintenance requirements. Northwest would require a 50-foot-wide permanent easement for the project. The aboveground facilities would need a total of 0.95 acre. The amendments cause an increase in land use of 1.29 acres for construction (temporary) and 0.35 acre for operation (permanent easement) Construction of the lateral would primarily use a 75-foot-wide construction right-of-way. However, a number of areas would require the construction right-of-way to be reduced to less than 75 feet in width. In addition to the typical 75-foot-wide construction right-of-way, additional temporary extra work areas at specific locations such as road and railroad crossings, and waterbody and wetland crossings are required.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as “scoping”. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, the Commission requests public comments on the scope of the issues it will address in the EA. All comments received are considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern.
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils
• Land use
• Water resources, fisheries, and wetlands
• Cultural resources
• Vegetation and wildlife
• Air quality and noise
• Endangered and threatened species
• Hazardous waste
• Public safety
We will also evaluate possible alternatives to the proposed changes in the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission=s official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section below.
The environmental issues for the certificated route were addressed in the August 10, 2001 EA. We have identified several additional issues that we think deserve attention based on a preliminary review of the amended facilities and the environmental information provided by Northwest. This preliminary list of issues may be changed based on your comments and our analysis.
• The project would be within 50 feet of 4 additional residences; and
• The crossing of Catherine Creek in the new proposed location.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the change to the original proposal, alternatives to the proposal (including alternative routes), measures to avoid or lessen environmental impact, and how you believe these changes affect the original analysis. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas Branch 2.
• Reference Docket No. CP01-49-002.
• Mail your comments so that they will be received in Washington, DC on or before October 3, 2003.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding.
We may mail the EA for comment. If you are interested in receiving it, please return the Information Request (appendix 4). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must provide 14 copies of its filings to
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
This notice is being sent to individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. It is also being sent to all identified potential right-of-way grantors.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you too keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
The Office of Energy Projects will host the fifth workshop in its “Better Stakeholder Involvement Series.” This workshop will focus on “lessons learned” from a project where the Commission's National Environmental Policy Act (NEPA) Pre-Filing Process was implemented.
We will learn from stakeholder and industry experiences with projects, solicit ideas for enhancing communication, and discuss the development of a new brochure to help stakeholders effectively participate in the NEPA Pre-Filing Process.
We will specifically discuss the
The workshop will be held at the Holiday Inn-Tanglewood, 4468 Starkey Road, from 9 a.m. to 4 p.m. The phone number at the hotel is 1-888-228-5040. A preliminary agenda and directions and map to the hotel are enclosed. You may also go to the hotel's Web site for more detailed information and driving directions at
If you plan to attend or have suggestions for the agenda, please respond by Monday, September 29, 2003 via facsimile to Roberta Coulter at 202-208-0353, or you may e-mail our team at:
To help us enhance our panel discussions, please consider, and forward to us, issues and/or questions you would like to have addressed at the meetings. If you have any questions, you may contact any of the staff listed below:
The following notice of meeting is published pursuant to section 3(a) of the Government in the Sunshine Act (Pub. L. 94-409), 5 U.S.C. 552B:
Items listed on the agenda may be deleted without further notice.
This is a list of matters to be considered by the commission. It does not include a listing of all papers relevant to the items on the agenda; however, all public documents may be examined in the reference and information center.
The following notice of meeting is published pursuant to section 3(a) of the Government in the Sunshine Act (Pub. L. No. 94-409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
September 11, 2003; 9:50 a.m.
Room 3M 4A/B, 888 First Street, NE., Washington, DC 20426.
Closed.
Non-Public Investigations and Inquiries and Enforcement Related Matters.
Magalie R. Salas, Secretary, Telephone (202) 502-8400.
Chairman Wood and Commissioners Massey and Brownell voted to hold a closed meeting on September 10, 2003. The certification of the General Counsel explaining the action closing the meeting is available for public inspection in the Commission's Public reference Room at 888 First Street, NW., Washington, DC 20426.
The Chairman and the Commissioners, their assistants, the Commission's Secretary and her assistant, the General Counsel and members of her staff, and a stenographer are expected to attend the meeting. Other staff members from the Commission's program offices who will advise the Commissioners in the matters discussed will also be present.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces the formation of a new subcommittee of the Advisory Council on Clean Air Compliance Analysis (Council), requests nominations of candidates, and requests for comments on the proposed candidates for the “Short List”. The Subcommittee will assist the Council in providing advice to the Agency regarding assessments of ecological effects related to the impacts of implementing the Clean Air Act (CAA). The new subcommittee, for which the SAB Staff Office is soliciting nominations, will be called the Ecological Effects Subcommittee (EES).
Nominations should be submitted no later than September 19, 2003.
Comments on the current or revised “Short List” candidates should be submitted no later than September 29, 2003.
Nominations should be submitted in electronic format through the
Any member of the public wishing further information regarding this notice may contact Dr. Angela Nugent, (DFO), U.S. EPA Science Advisory Board, 1200 Pennsylvania Avenue, NW., (1400A), Washington, DC 20460; by telephone/voice mail at (202) 564-4562, by fax at (202) 501-0323; or via e-mail at
On May 29, 2003, the SAB Staff Office published on the SAB website a Memorandum entitled “US EPA Science Advisory Board (SAB) Staff Office's Selection of Experts to Augment the Expertise of the Advisory Council on Clean Air Compliance Analysis to form a Special Council Panel for the Review of the Third 812 Analysis, the Air Quality Modeling Subcommittee, and the Health Effects Subcommittee” (see
The SAB Staff Office made the decision regarding the HES and the decision to establish the EES because of the importance of ecological issues to the Council, which noted in its most recent report,
The general charge to the EES will be to assist the Council in: (a) Reviewing data to be used for any analysis of ecological effects required under section 312 of the CAA; (b) reviewing the methodology used to analyze such data and make recommendations on the use of such methodology; and (c) prior to the issuance of a report to Congress required under section 312 of the CAA, reviewing the findings of the report and make recommendations concerning the validity and utility of such findings. Members of the EES will provide advice to the Agency, through the council, over a two-year period.
The initial charge questions to be addressed by the EES related to the Agency's draft analytical plan are identified below. Expertise needed to address these questions and to meet the general charge to the EES identified in the paragraph immediately above are identified below under the heading “SAB Staff Office Request for Nominations.”
Subsequent to the publication of the
The SAB Staff Office is issuing this notice in light of three considerations: (1) The February 14, 2003,
A. Does the Council support the plans described in chapter 7 for (a) qualitative characterization of the ecological effects of Clean Air Act-related air pollutants, (b) an expanded literature review, and (c) a quantitative, ecosystem-level case study of ecological service flow benefits? If there are particular elements of these plans which the Council does not support, are there alternative data or methods the Council recommends?
2. Initial plans described in chapter 7 reflect a preliminary EPA decision to base the ecological benefits case study on Waquoit Bay in Massachusetts. Does the Council support these plans? If the Council does not support these specific plans, are there alternative case study designs the Council recommends?
Anyone who is unable to submit nominations through the SAB website, or has questions concerning any aspect of the nomination process, may contact Dr. Angela Nugent as indicated above in this FR notice. Nominations should be submitted in time to arrive no later than September 19, 2003.
The EPA Science Advisory Board Staff Office will acknowledge receipt of any nominations received. From the nominees identified by respondents to this
The public is requested to provide to the DFO information, documentation, or analysis about individuals listed on the “Short List” of candidates for the EES posted on the SAB Web site. The SAB Staff Office will consider this information in making the selection of subcommittee members. The public is requested also to provide additional nominations for the Subcommittee following the procedures identified below.
For the EPA SAB, a balanced committee, subcommittee, or panel is characterized by inclusion of candidates who possess the necessary domains of knowledge, the relevant scientific perspectives (which, among other factors, can be influenced by work history and affiliation), and the collective breadth of experience to adequately address the charge. Public responses to the “Short List” candidates will be considered in the selection of the Subcommittee members, along with information provided by candidates and information gathered by EPA SAB Staff Office independently on the background of each candidate (
Those “Short List” candidates ultimately chosen to serve on the Subcommittee will be appointed as Special Government Employees. Therefore, all “Short List” candidates will be required to fill out the “Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency” (EPA Form 3110-48). This confidential form allows Government officials to determine whether there is a statutory conflict between that person's public responsibilities as a Special Government Employee and private interests and activities, or the appearance of a lack of impartiality, as defined by Federal regulation. The form may be viewed and downloaded from the following URL address:
Environmental Protection Agency.
Notice of charter renewal.
The Charter for the Environmental Protection Agency's (EPA) National Environmental Justice Advisory Council (NEJAC) will be renewed for an additional two-year period, as a necessary committee which is in the public interest, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II section 9(c). The purpose of the NEJAC is to provide advice and recommendations to the Administrator on issues associated with integrating environmental justice concerns into EPA's outreach activities, public policies, science, regulatory, enforcement, and compliance decisions.
It is determined that NEJAC is in the public interest in connection with the performance of duties imposed on the Agency by law.
Inquiries may be directed to Charles Lee, NEJAC Designated Federal Officer, U.S. EPA, (mail code 2201A), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board Staff Office is announcing two public teleconference meetings of the Advisory Council on Clean Air Compliance Analysis Special Council Panel for the Review of the Third 812 Analysis (Panel).
Participation in the teleconference meeting will be by teleconference only.
Members of the public who wish to obtain the call-in number and access code to participate in the teleconference meeting may contact Ms. Sandra Friedman, EPA Science Advisory Board Staff, at telephone/voice mail: (202) 564-2526; or via e-mail at:
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, Notice is given that the Council Special Panel will hold two public teleconference meetings, as described above, to advise the Agency on its plan to develop the third in a series of statutorily mandated comprehensive analyses of the total costs and benefits of programs implemented pursuant to the Clean Air Act.
Background on the Council Special Panel and this advisory project was provided in a
The Council Special Panel will be providing advice on the review 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 website, maintained by EPA's Office of Air and Radiation at:
Environmental Protection Agency (EPA).
Notice of availability of EPA decision document.
This notice announces the availability of EPA's Decision Documenton on a petition for rulemaking seeking repeal of a regulation that excludes vessel ballast water discharges from Clean Water Act permit requirements. Today's notice makes that Decision Document publicly available and announces EPA's denial of the petition.
EPA's Acting Administrator signed the Decision Document on September 2, 2003. For judicial review purposes, this action is final as of 1 p.m. (eastern time) on Tuesday, September 9, 2003, as provided at 40 CFR 23.2.
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 Avenue., NW., Washington, DC.
Ruby Cooper, U.S. EPA, Office Of Water, by phone at 202-564-0757 or by e-mail at
1. Electronic Copies : EPA's decision on the petition for rulemaking can be downloaded at
2. Docket: EPA has established an official public docket for this action under Docket ID No. OW-00-16. The official public docket consists of the documents specifically referenced in this action, any public comments received and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the Water 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 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 Water Docket is (202) 566-2426.
3. Electronic Access: You may access this
Environmental Protection Agency (EPA), Region 6.
Notice of availability for comment.
The Director of the EPA Region 6 Water Quality Protection Division is proposing to issue National Pollutant Discharge Elimination System (NPDES) general permits for storm water discharges from small municipal separate storm sewer systems (MS4s) located in the State of New Mexico, Indian Country Lands in New Mexico, and Indian Country Lands in Oklahoma. The proposed general permits would authorize the discharge of storm water and certain non-storm water discharges from municipal separate storm sewers. NPDES permit coverage for these discharges is required in accordance with section 402(p) of the 1987 Amendments to the Clean Water Act (CWA) (33 U.S.C. 1342(p)) and EPA regulations. To obtain discharge authorization, operators of MS4s would be required to submit a Notice of Intent (NOI) to be covered by the proposed general permit. The NOI would need to include storm water management program information describing the best management practices (BMPs) which the permittee will implement to control pollutants in the discharges in accordance with the requirements of the CWA and measurable goals for their implementation. In accordance with 40 CFR 122.34(a), the operator would have up to five years to develop and fully implement the storm water management program. The initial storm water management program submittal would likely consist of a combination of ongoing activities and schedules for developing and implementing additional activities to comply with the permit. Annual reporting would also be required to provide information on the status of the implementation of the storm water management program. This Notice announces the availability of the proposed general permits and fact sheet for public comment. Note that while the proposed general permits are structured as a single permit, and may be collectively referred to in the singular as the permit, they are actually three legally distinct permits each covering a different geographical area.
Each of the legally separate and distinctly numbered proposed permits covers one of the areas listed in the table below. Parts 1-7 of the proposed general permit and the Appendices are common to all of the permits, while Part 8 of the permit contains the State, Indian Country Land or other area-specific conditions that make each of the permits unique. The proposed general permits will cover areas within Region 6 where a State or Tribal permitting program has not been authorized under section 402(b) of the CWA. Indian Country includes all lands within Indian reservations, all dependent Indian communities, and Indian allotments. In Oklahoma it also includes lands held in trust for the benefit of Tribes. At this time, no regulated MS4s under EPA jurisdiction are located in Arkansas, Louisiana, or Texas, so permits for these areas are not being proposed by Region 6. Most MS4s in Arkansas, Louisiana, Oklahoma, and Texas are regulated by NPDES-authorized State programs.
This notice also announces the availability for public comment of the preliminary results of the Region's review of those New Mexico small MS4s with a population of between 10,000 and 50,000 and a population density of 1,000 or more per square mile that are located outside a Urbanized Area for possible designation as a regulated small MS4 (see 40 CFR 123.35(b)). Although EPA is not required to do so, EPA is inviting and will consider comments it receives regarding the small MS4 designation review.
The public comment period for the proposed general permits is 45 days starting from the date of today's notice. Interested parties may submit comments on the proposed general permits to EPA Region 6 at the address below, no later than October 24, 2003. Any comments received by EPA Region 6 and EPA's response to these comments will become part of the administrative record for these general permits. The general permits will be effective on the date specified in the final general permit notice that will be published in the
Comments on the small MS4 designation review process or preliminary decisions must be submitted by October 24, 2003, to the same address.
Comments on the proposed general permits should be sent to Docket No. 6WQ-03-SW01, Attn: Ms. Diane Smith, EPA Region 6, Water Quality Protection Division (6WQ-CA), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be submitted in electronic format (Wordperfect 9, MS Word 2000, or ASCII Text formats only, avoiding use of special characters) to the above address or via e-mail to
EPA Region 6 will be holding two informal public meetings which will include a presentation on the proposed general permits and a question and answer session. Advance notice of the times and dates for these meetings was provided in the Albuquerque Journal and the Daily Oklahoman newspapers on August 9, 2003, and via EPA's Web site at
Albuquerque Technical Vocational Institute, Workforce Training Center, Conference Rooms 101 & 103, 5600 Eagle Rock Ave, NE., Albuquerque, NM 87113.
Metro Tech Conference Center, Auditorium, 1900 Springlake Drive, Oklahoma City, OK 73111.
Interested persons may also request a public hearing pursuant to 40 CFR 124.11 concerning the proposed general permit. Requests for a public hearing must be sent or delivered in writing to the same address for comments prior to the close of the comment period. Requests for a public hearing must state the nature of the issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12(a), the Regional Administrator will hold a public hearing if he finds, on the basis of requests, a significant degree of public interest in the proposed permit(s). If the Regional Administrator decides to hold a public hearing, a public notice of the date, time and place of the hearing will be made at least 30 days prior to the hearing. Any person may provide written or oral statements and data pertaining to the proposed general permits at the public hearing.
Additional information concerning the proposed general permits and preliminary designation decisions may be obtained from Ms. Terry Branch at 214-665-6667 or
The proposed general permits and fact sheet, which also includes information on preliminary small MS4 designation decisions, may be obtained from the Internet via the EPA-Region 6 Web site at
Clean Water Act, 33 U.S.C. 1251
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on September 11, 2003, from 9 a.m. until such time as the Board concludes its business.
Jeanette C. Brinkley, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090.
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
* Session Closed-Exempt pursuant to 5 U.S.C. 552b(c)(8) and (9).
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before October 9, 2003. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copy of the information collection(s) contact Les Smith at (202) 418-0217 or via the Internet at
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10:18 a.m. on Friday, September 5, 2003, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters relating to the Corporation's corporate activities.
In calling the meeting, the Board determined, on motion of Director James E. Gilleran (Director, Office of Thrift Supervision), seconded by Vice Chairman John M. Reich, concurred in by Chairman Donald E. Powell, that Corporation business required its consideration of the matters on less than seven days' notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(4), (c)(6), (c)(8), (c)(9)(B), and (c)(10) of the “Government in the Sunshine Act” (5 U.S.C. 552b(c)(4), (c)(6), (c)(8), (c)(9)(B), and (c)(10)).
The meeting was held in the Board Room of the FDIC Building located at 550 17th Street, NW., Washington, DC.
Federal Maritime Commission.
68 FR 52770.
10 a.m., September 11, 2003.
The wording of the Title for Item 1 was incorrect it should read:
1. Fact Finding Investigation No. 25—Practices of Transpacific Stabilization Agreement Members Covering the 2002-2003 Service Contract Season and Section 15 Responses from TSA and Carriers Operating in the Inbound Transpacific Trades.
Bryant L. VanBrakle, Secretary, (202) 523-5725.
Board of Governors of the Federal Reserve System
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its
The following information collections, which are being handled under this delegated authority, have received initial Board approval and are hereby published for comment. At the end of the comment period, the proposed information collections, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. the accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. ways to enhance the quality, utility, and clarity of the information to be collected; and
d. ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments must be submitted on or before November 10, 2003.
Comments may be mailed to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, N.W., Washington, DC 20551. However, because paper mail in the Washington area and at the Board of Governors is subject to delay, please consider submitting your comments by e- mail to
A copy of the comments may also be submitted to the OMB desk officer for the Board: Joseph Lackey, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 3208, Washington, DC 20503.
A copy of the proposed form and instructions, the Paperwork Reduction Act Submission (OMB 83-I), supporting statement, and other documents that will be placed into OMB's public docket files once approved may be requested from the agency clearance officer, whose name appears below.
Cindy Ayouch, Federal Reserve Board Clearance Officer (202-452-3829), Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may contact (202-263-4869), Board of Governors of the Federal Reserve System, Washington, DC 20551.
Board of Governors of the Federal Reserve System, September 3, 2003.
Board of Governors of the Federal Reserve System.
12 noon, Monday September 15, 2003.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, NW, Washington, DC 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions) involving individual Federal Reserve System employees.
2. Any items carried forward from a previously announced meeting.
Michelle A. Smith, Assistant to the Board; 202-452-2955.
You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at
Weeks of September 8, 15, 22, 29, October 6, 13, 2003.
Commissioner's Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of September 15, 2003.
Thus meeting will be webcast live at the Web address—
This meeting will be wedcast live at the Web address—
This meeting will be webcast live at the Web address—
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 longer 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
Pursuant to Public Law 92-463, notice is hereby given of the second meeting of the Secretary's Advisory Committee on Genetics, Health, and Society (SACGHS), U.S. Public Health Service. The meeting will be held from 9 a.m. to 5 p.m. on October 22, 2003 and 8:30 a.m. to 5 p.m. on October 23, 2003 at the Loews L'Enfant Plaza Hotel, 480 L'Enfant Plaza, Washington, DC. The meeting will be open to the public with attendance limited to space available.
On the first day of the meeting, the Committee will review the roles, activities, and plans of the Federal regulatory agencies with regard to the oversight of genetic technologies, including pharmacogenomic
SACGHS welcomes receiving comments from the public on any issues related to its mandate. For the October meeting in particular, the Committee would welcome public comment on: (1) The adequacy of the education and training of health professionals in genetics and the genetics workforce and whether current efforts to prepare health professionals to use genetic technologies are adequate and, if not, what the gaps are and how should they be addressed; and (2) the role, current activities, and plans of the Federal regulatory agencies to assure the safety and appropriate marketing of genetic tests. Written comments submitted to the Committee by October 1, 2003 will be considered part of the Committee's deliberations. Time will also be provided during the meeting for public commentary. Written public commments should be submitted by mail, email, or fax to the following: Edward R.B. McCable, M.D., Ph.D., Chair, Secretary's Advisory Committee on Genetics, Health and Society, c/o NIH Office of Biotechnology Activities, 6705 Rockledge Drive, Suite 750, Bethesda, MD 20892, (301) 496-9839 (fax),
Members of the public who wish to make a statement to the Committee during the meeting should notify the SACGHS Executive Secretary, Ms. Sarah Carr, by telephone at (301) 496-9838 or e-mail at
The draft meeting agenda and other information about SACGHS will be available at the following Web site:
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is given of a meeting of the Secretary's Council on Public Health Preparedness.
The purpose of this public meeting is to convene the Council to discuss issues related to preparing the nation to respond to public health emergencies in general and bioterrorism in particular. Major areas to be considered by the Council at this meeting may include the following: SARS; Smallpox Vaccination Program; Monkeypox; State and Local Programs including Hospital Programs; R&D Initiatives including Bioshield; and Modeling Initiatives.
The Secretary's Council on Public Health Preparedness was established on October 22, 2001, by the Secretary of Health and Human Services under the authorization of section 319 of the Public Health Service Act (42 U.S.C. 247d); section 222 of the Public Health Service Act (42 U.S.C. 217a). The purpose of the Secretary's Council on Public Health Preparedness will be to advise the Secretary on appropriate actions to prepare for and respond to public health emergencies including acts of bioterrorism. The function of the Council is to advise the Secretary regarding steps that the U.S. Department of Health and Human Services can take to (1) improve the public health and health care infrastructure to better enable Federal, State, and local governments to respond to a public health emergency and, specifically, a bio-terrorism event; (2) ensure that there are comprehensive contingency plans in place at the Federal, State, and local levels to respond to a public health emergency and, specifically, a bio-terrorism event; and (3) improve public health preparedness at the Federal, State, and local levels.
The meeting is open to the public with attendance limited by the availability of space on a first come, first served basis. Members of the public who wish to attend the meeting may register by e-mailing
Opportunities for oral statements by the public will be provided on Tuesday, September 23, 2003, at approximately 11:30 a.m. Oral comments will be limited to 5 minutes, three minutes to make a statement and two minutes to respond to questions from Council members. Due to time constraints, only one representative from each organization will be allotted time for oral testimony. The number of speakers and the time allotment may also be limited by the number of registrants. Members of the public who wish to present oral comments at the meeting may register by e-mailing
Any person attending the meeting who has not registered to speak in advance of the meeting will be allowed to make a brief oral statement during the time set aside for public comment if time permits and at the Chairperson's discretion. Individuals unable to attend the meeting, or any interested parties, may send written comments by e-mail to
When mailing written comments, please provide your comments, if possible, as an electronic version or on a diskette. Persons needing special assistance, such as sign language interpretation or other special accommodations, should contact staff at the address and telephone number listed above no later than close of business, Monday, September 15, 2003.
Because of the need to provide advice and recommendations on bioterrorism, this notice is being published at the earliest possible time.
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), NCHS announces the following committee meeting.
The agenda for the meeting on October 10 will include welcome remarks by the Director, NCHS; introductions of members and key NCHS staff; scientific presentations and discussions; and an open session for comments from the public.
Requests to make an oral presentation should be submitted in writing to the contact person listed below by close of business, October 3, 2003. All requests to make oral comments should contain the name, address, telephone number, and organizational affiliation of the presenter.
Written comments should not exceed five single-spaced typed pages in length and should be received by the contact person listed below by close of business, October 3, 2003.
Agenda items are subject to change as priorities dictate.
Linda Blankenbaker, Executive Secretary, National Center for Health Statistics, Office of the Director, 3311 Toledo Road, Room 7204, Hyattsville, Maryland 20782, telephone (301) 458-4500, fax (301) 458-4020.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Investigational Device Exemptions Reports and Records” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for emergency processing under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by September 15, 2003.
OMB is still experiencing significant delays in the regular mail, including first class and express mail, and messenger deliveries are not being accepted. To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: Fumie Yokota, Desk Officer for FDA, FAX: 202-395-6974.
Karen Nelson, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
FDA has requested emergency processing of this proposed collection of information under section 3507(j) of the PRA (44 U.S.C. 3507(j) and 5 CFR 1320.13). This information is needed immediately, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA is requesting OMB approval under the PRA (44 U.S.C. 3507) for the reporting and recordkeeping requirements contained in the guidance for industry entitled “Continuous Marketing Applications: Pilot 2—Scientific Feedback and Interactions During Development of Fast Track Products Under PDUFA.” This guidance discusses how the agency will implement a pilot program for frequent scientific feedback and interactions between FDA and applicants during the investigational phase of the development of certain Fast Track drug and biological products. Applicants are being asked to apply to participate in the Pilot 2 program.
In conjunction with the June 2002 reauthorization of the Prescription Drug User Fee Act of 1992 (PDUFA), FDA agreed to meet specific performance goals (PDUFA Goals). The PDUFA Goals include two pilot programs to explore the continuous marketing application (CMA) concept. The CMA concept builds on the current practice of interaction between FDA and applicants during drug development and application review and proposes opportunities for improvement.
Under the CMA pilot program, Pilot 2, certain drug and biologic products that have been designated as Fast Track (i.e., products intended to treat a serious and/or life-threatening disease for which there is an unmet medical need) are eligible to participate in the program. Pilot 2 is an exploratory program that will allow FDA to evaluate the impact of frequent scientific feedback and interactions with applicants during the investigational new drug application (IND) phase. Under the pilot program, a maximum of one Fast Track product per review division in the Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER) will be selected to participate. This guidance provides information regarding the selection of participant applications for Pilot 2, the formation of agreements between FDA and applicants on the IND communication process, and other procedural aspects of Pilot 2. FDA will begin accepting applications for participation in Pilot 2 on October 1, 2003.
The guidance describes one collection of information: Applicants who would like to participate in Pilot 2 must submit an application (Pilot 2 application) containing certain information outlined in the guidance. The purpose of the Pilot 2 application is for the applicants to describe how their designated Fast Track product would benefit from enhanced communications between FDA and the applicant during the product development process.
FDA's regulation at § 312.23 (21 CFR 312.23) states that information provided to the agency as part of an IND must be submitted in triplicate and with an appropriate cover form. Form FDA 1571 must accompany submissions under INDs. Part 312 and FDA Form 1571 have a valid OMB control number: OMB control number 0910-0014, which expires January 31, 2006.
In the guidance document, CDER and CBER ask that a Pilot 2 application be submitted as an amendment to the application for the underlying product under the requirements of § 312.23; therefore, Pilot 2 applications should be submitted to the agency in triplicate with Form FDA 1571. The agency recommends that a Pilot 2 application be submitted in this manner for two reasons: (1) To ensure that each Pilot 2 application is kept in the administrative file with the entire underlying application, and (2) to ensure that pertinent information about the Pilot 2 application is entered into the appropriate tracking databases. Use of the information in the agency's tracking databases enables the agency to monitor progress on activities.
Under the guidance, the agency asks applicants to include the following information in the Pilot 2 application:
• Cover letter prominently labeled “Pilot 2 application;”
• IND number;
• Date of Fast Track designation;
• Date of the end-of-phase 1 meeting, or equivalent meeting, and summary of the outcome;
• A timeline of milestones from the drug or biological product development program, including projected date of new drug applications/biologic licensing applications submissions;
• Overview of the proposed product development program for a specified disease and indication(s), providing information about each of the review disciplines (e.g., chemistry/manufacturing/controls, pharmacology/toxicology, clinical, clinical pharmacology and biopharmaceutics);
• Rationale for interest in participating in Pilot 2, specifying the ways in which development of the subject drug or biological product would be improved by frequent scientific feedback and interactions with FDA and the potential for such communication to benefit public health by improving the efficiency of the product development program; and
• Draft agreement for proposed feedback and interactions with FDA.
This information will be used by the agency to determine which Fast Track products are eligible for participation in Pilot 2. Participation in this pilot program will be voluntary.
Based on the number of approvals for Fast Track designations and data collected from the review divisions and offices within CDER and CBER, FDA
In the
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact AnnMarie Williams, Conference Management Staff, at 301-594-1283, ext. 113, at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Cancer Institute (NCI), the National Institutes of Health (NIH), has submitted to the Office of Management and Budget (OMB) a request to review and approve the information collection listed below. This proposed information collection was previously published in the
The annualized cost to respondents is estimated at $13,024. There are no Capital Costs to report. There are no Operating and/or Maintenance Costs to report.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Multiple strategies have been devised to address the NDEP objectives. These have been described in the NDEP Strategic Plan and include: (1) Creating partnerships with other organizations concerned about diabetes; (2) developing and implementing awareness and education activities with special emphasis on reaching the racial and ethnic populations disproportionately affected by diabetes; (3) identifying, developing, and disseminating educational tools and resources for the program's audiences; (4) promoting policies and activities to improve the quality of and access to diabetes care.
The NDEP evaluation will document the extent to which the NDEP program has been implemented, and how successful it has been in meeting program objectives. The evaluation relies heavily on data gathered from existing national surveys such as National Health and Nutrition Examination Survey (NHANES), the National Health Interview Survey (NHIS), the Behavioral Risk Factor Surveillance System (BRFSS), among others for this information. This generic clearance request is for the collection of additional primary data from NDEP target audiences on some key process and impact measures that are necessary to effectively evaluate the program. Approval is requested for up to 4 surveys of audiences targeted by the National Diabetes Education Program including people at risk for diabetes, people with diabetes and their families, health care providers, payers and purchasers of health care and health care system policy makers.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Joanne Gallivan, M.S., R.D., Director, National Diabetes Education Program, NIDDK, NIH, Building 31, Room 9A04, 31 Center Drive, Bethesda, MD 20892, or call non-toll-free number (301) 494-6110 or E-mail your request, including your address to:
In compliance with the requirement of section 3506(c)(2)(A) of
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Cheryl Nelson, Jackson Heart Study Project Officer, 6701 Rockledge Drive, Room 8152, MSC 7934, Rockville, MD 20892-7934, or call non-toll-free number (301) 435-0451 or E-mail your request, including your address to:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Fogarty International Center Advisory Board.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and 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.
Information is also available on the Institute's/Center's home page:
Pursuant to Pub. L. 92-463, notice is hereby given of the second meeting of the Secretary's Advisory Committee on Genetics, Health,and Society (SACGHS), U.S. Public Health Service. The meeting will be held from 9 a.m. to 5 p.m. on October 22, 2003 and 8:30 a.m. to 5 p.m. on October 23, 2003 at the Loews L'Enfant Plaza Hotel, 480 L'Enfant Plaza, Washington, DC. The meeting will be open to the public with attendance limited to space available.
On the first day of the meeting, the Committee will review the roles, activities, and plans of the Federal regulatory agencies with regard to the oversight of genetic technologies, including pharmacogenomic technologies, to determine whether further study of this area is warranted. Program officials from the Food and Drug Administration, Centers for Medicare & Medicaid Services, Centers for Disease Control and Prevention, and Federal Trade Commission will brief the Committee about current and planned regulatory approaches with respect to genetic technologies. On the second day, the Committee will review Federal efforts to address the adequacy of the genetics workforce and the education and training of health professionals in genetics. Reports will also be provided on the efforts of professional societies and organizations to enhance the preparedness of health professionals in genetics. The Committee will also hold a session on related international activities at which representatives of the Human Genetics Commission of the United Kingdom and the Australian Law Reform Commission will report on their countries' efforts to address emerging issues raised by advances in genetic technologies. Under authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, the Department of Health and Human Services established SACGHS to serve as a public forum for deliberations on the broad range of human health and societal issues raised by the development and use of genetic technologies and, as warranted, to provide advice on these issues.
SACGHS welcomes receiving comments from the public on any issues related to its mandate. For the October meeting in particular, the Committee would welcome public comment on: (1) The adequacy of the education and training of health professionals in genetics and the genetics workforce and whether current efforts to prepare health professionals to use genetic technologies are adequate and, if not, what the gaps are and how should they be addressed; and (2) the role, current activities, and plans of the Federal regulatory agencies to assure the safety and appropriate marketing of genetic tests. Written comments submitted to the Committee by October 1, 2003 will be considered part of the Committee's deliberations. Time will also be provided during the meeting for public commentary. Written public comments should be submitted by mail, e-mail, or fax to the following. Edward R.B. McCabe, M.D., PhD., Chair, Secretary's Advisory Committee on Genetics, Health and Society, c/o NIH Office of Biotechnology Activities, 6705 Rockledge Drive, Suite 750, Bethesda, MD 20892, 301-496-9839 (fax),
Members of the public who wish to make a statement to the Committee during the meeting should notify the SACGHS Executive Secretary, Ms. Sarah Carr, by telephone at (301) 496-9838 or e-mail at
The draft meeting agenda and other information about SACGHS will be available at the following Web site:
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(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Cancer Institute Director's Consumer Liaison Group.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Heart, Lung, and Blood Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the 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(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Children's Study of Environmental Effects on Health Advisory Committee.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
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
The meeting 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 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.
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 meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors, National Institute of Neurological Disorders and Stroke.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The meeting will be closed to the public as indicated below in accordance with the provisions
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors, National Library of Medicine.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual grant applications conducted by the National Library of Medicine, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance into the building by non-government employees. Persons without a government I.D. will need to show a photo I.D. and sign-in at the security desk upon entering the building.
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.
Please be advised that the
Information about substances nominated to the NTP for toxicology and carcinogenesis studies and the ICCEC's recommendations were published in the
Plans are underway for making this meeting available for viewing on the Internet at
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This notice amends the notice of a major disaster declaration for the State of Florida (FEMA-1481-DR), dated July 29, 2003, and related determinations.
August 29, 2003.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Florida is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of July 29, 2003: Hernando County for Public Assistance.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of New York (FEMA-3186-EM), dated August 23, 2003, and related determinations.
August 23, 2003.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated August 23, 2003, the President declared an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5206 (Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the State of New York, resulting from a statewide power outage on August 14-16, 2003, is of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act). I, therefore, declare that such an emergency exists in the State of New York.
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act to save lives, protect property and public health and safety, or to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide emergency protective measures (Category B) under the Public Assistance program at 75 percent Federal funding. This assistance excludes regular time costs for subgrantees' regular employees. In addition, you are authorized to provide such other forms of assistance under Title V of the Stafford Act as you may deem appropriate.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses. However, pursuant to 42 U.S.C. 5193(b)(1), Federal assistance under this declaration will be limited to up to $5 million.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Under Secretary for Emergency Preparedness and Response, Department of Homeland Security, under Executive Order 12148, as amended, Justo Hernandez, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
I do hereby determine the following areas of the State of New York to have been affected adversely by this declared emergency:
Albany, Allegany, Bronx, Broome, Cattaraugus, Cayuga, Chatauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Dutchess, Erie, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Kings, Lewis, Livingston, Madison, Monroe, Montgomery, Nassau, New York, Niagara, Oneida, Onondaga, Ontario, Orange, Orleans, Oswego, Otsego, Putnam, Queens, Rensselaer, Richmond, Rockland, Saint Lawrence, Saratoga, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Suffolk, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Westchester, Wyoming, and Yates Counties for emergency protective measures (Category B) under the Public Assistance program.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This notice amends the notice of a major disaster declaration for the State of Ohio (FEMA-1484-DR), dated August 1, 2003, and related determinations.
August 6, 2003.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Ohio is hereby amended to include the Public Assistance program for the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of August 1, 2003:
Columbiana, Mahoning, Medina, Portage, Stark, Summit, and Trumbull Counties for Public Assistance (already designated for Individual Assistance.)
Jefferson County for Public Assistance.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This notice amends the notice of a major disaster for the State of Ohio (FEMA-1484-DR), dated August 1, 2003, and related determinations.
August 25, 2003.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that the incident period for this disaster is closed effective August 25, 2003.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This is a notice of the Presidential declaration of a major disaster for the Commonwealth of Pennsylvania (FEMA-1485-DR), dated August 23, 2003, and related determinations.
August 23, 2003.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated August 23, 2003, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the Commonwealth of Pennsylvania, resulting from severe storms, tornadoes, and flooding on July 21, 2003, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5206 (the Stafford Act). I, therefore, declare that such a major disaster exists in the Commonwealth of Pennsylvania.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, and Hazard Mitigation throughout the Commonwealth, and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Under Secretary for Emergency Preparedness and Response, Department of Homeland Security, under Executive Order 12148, as amended, Thomas Davies, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the Commonwealth of Pennsylvania to have been affected adversely by this declared major disaster:
Crawford, Forest, Mercer, McKean, Venango, and Warren Counties for Public Assistance.
All counties within the Commonwealth of Pennsylvania are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Office of the President of Government National Mortgage Association (Ginnie Mae), 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: Sonya Suarez, Office of Program Operations, Department of Housing and Urban Development, 451—7th Street, SW., Room 6206, Washington, DC 20410.
Sonya Suarez, Ginnie Mae, (202) 708-2884 (this is not a toll-free number) for copies of the proposed forms and other available documents.
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
The Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
The Ginnie Mae Multiclass Securities Program consists of Ginnie Mae Real Estate Mortgage Investment Conduit (“REMIC”) securities and Platinum securities. The Multiclass Securities program provides an important adjunct to Ginnie Mae's secondary mortgage market activities, allowing the private sector to combine and restructure cash flows from Ginnie Mae Single Class MBS into securities that meet unique investor requirements in connection with yield, maturity, and call-option protection. The intent of the Multiclass Securities program is to increase liquidity in the secondary mortgage market and to attract new sources of capital for federally insured or guaranteed residential loans. Under this program, Ginnie Mae guarantees, with the full faith and credit of the United States, the timely payment of principal and interest on Ginnie Mae REMIC and Platinum securities.
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The requested information is for the oversight of existing grants for federally assisted low-income housing owners to combat drug-related criminal activity in and around developments. No funding for new grants has been available since fiscal year 2001.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0476) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; e-mail
Copies of the relevant documentation are available from Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review for extension of the current approval, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The requested information is used to assess a Public Housing Authority's (PHA's) management capabilities and performance in administering a housing choice voucher program. Assessment ratings are used as tool in addressing any potential deficiencies.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2577-0215) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; e-mail
Copies of the relevant documentation are available from Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The requested information will assist HUD in evaluating grant applicants for the Housing Service Coordinator Program. Information is needed to determine how well grant funds meet stated program goals and how well the public was served.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0447) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; e-mail
Copies of the relevant documentation are available from Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Application and progress reporting for the Public Housing HomeOwnership Program: PHAs make public housing units and other housing projects available for purchase by low-income families for use as principal residences.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2577-0233) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; e-mail
Copies of the relevant documentation are available from Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This information is collected from mortgagors and contractors to manage and monitor the process of advancing mortgage proceeds for multifamily mortgages on new or rehabilitated housing.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0044) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; E-mail
Copies of the relevant documentation are available from Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The information is required to disburse funds and to monitor the performance of grantees in achieving the goals and objectives of the HOPE 3 Program to create homeownership opportunities for low-income families and individuals who are first-time homebuyers.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2506-0128) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; E-mail
Copies of the relevant documentation are available from Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
HUD is seeking renewal of the approval to use the standardized form for the Collection of Race and Ethnic Data. OMB issued revised standards for collecting race and ethnicity data for Federal agencies October 30, 1997. The standards apply to HUD program offices and partners that collect, maintain, and report Federal data on race and ethnicity for program administrative reporting, and civil rights compliance reporting to reflect the growing diversity of the U.S. population. The form is designed for reporting aggregate racial and ethnic data by those entities that are required to collect and report such data to HUD.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2535-0113) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; E-mail
Copies of the relevant documentation are available from Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The Department is seeking renewal of the approval to collect information to select awardees for the Fair Housing Initiatives Program (FHIP) grant. The application requirements contain some changes from those in use since 3/2003.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2529-0033) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; E-mail
Copies of the relevant documentation are available from Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice of redelegation of authority.
In this notice, the Assistant Secretary for Public and Indian Housing redelegates the authority to administer the Section 184 Indian Housing Loan Guarantee Program to the Deputy Assistant Secretary for Native American Programs, and the Director of the Office of Loan Guarantee in the Office of Native American Programs, Office of Public and Indian Housing.
July 18, 2003.
Edward Fagan, Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4126, Washington, DC 20410-5000; telephone (202) 401-7914 (this is not a toll-free number). For those needing assistance, this number may be accessed through TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The Section 184 Indian Housing Loan Guarantee program is authorized by section 184 of the Housing and Community Development Act of 1992 (12 U.S.C. 1715z-13a). The purpose of the program is to provide Indian families, Indian housing authorities and tribes with access to sources of private financing. In a separate notice, the authority to administer the Section 184 Indian Housing Loan Guarantee program was delegated by the Secretary
The Assistant Secretary for Public and Indian Housing redelegates the authority to administer the Section 184 Indian Housing Loan Guarantee program under section 184 of the Housing and Community Development Act of 1992 (12 U.S.C. 1715z-13a) to the Deputy Assistant Secretary for Native American Programs and the Director of the Office of Loan Guarantee, in the Office of Native American Programs.
The authority redelegated under Section A does not include: (1) the authority to issue and waive regulations; and (2) the power to sue and be sued.
The Assistant Secretary for Public and Indian Housing revokes all prior delegations pertaining to administration of the Section 184 Indian Housing Loan Guarantee program, including but not limited to the delegation of authority published on September 26, 1994 (59 FR 49124).
Section 7(d), Department of Housing and Urban Development Act, 42 U.S.C. 3535(d).
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice of redelegation and supersedure of authority.
In this notice, the Assistant Secretary for Public and Indian Housing updates the redelegation of authority for administration of Native American housing programs to the Deputy Assistant Secretary for Native American Programs, the Office of Native American Programs (ONAP) Administrators, the Director of the Office of Grants Management, and the Director of the Office of Grants Evaluation, within ONAP, Office of Public and Indian Housing.
July 18, 2003.
Edward Fagan, Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4126, Washington DC 20410-5000; telephone (202) 401-7914 (this is not a toll-free number). For those needing assistance, this number may be accessed through TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) (25 U.S.C. 4101
Subject to authority excepted in section C of this notice, the Assistant Secretary for Public and Indian Housing redelegates to the Deputy Assistant Secretary for Native American Programs all the Assistant Secretary's authority to administer the programs under Titles I through V of the Native American Housing Assistance and Self-Determination Act of 1996, including the authority to review plans submitted in compliance with section 102 of NAHASDA and to notify the Tribe or tribally designated entity whether the plan complies with the statutory requirements, the reasons for noncompliance and the modifications necessary to meet the requirements of section 102 of NAHASDA.
The Assistant Secretary further redelegates to the ONAP Administrators, the Director of the Office of Grants Management, and the Director of the Office of Grants Evaluation the authority to:
1. Conduct environmental reviews in compliance with section 105(b) of NAHASDA (25 U.S.C. 4115);
2. Execute all necessary agreements, including but not limited to grant agreements;
3. Review performance reports submitted by the Tribe or the tribally designated entity and issue reports based on such review; and
4. Any other authority necessary to carry out the purposes of Titles I through V of NAHASDA, which has not been excepted from this delegation.
The authority redelegated under section A and section B does not include (1) the authority to issue and waive regulations; (2) the authority to waive the requirement for submitting the plan as set forth in section 101(b)(2) of NAHASDA (25 U.S.C. 4116); (3) the authority to require replacement of a tribally designated housing entity pursuant to section 402 of NAHASDA (25 U.S.C. 4162); or (4) the authority to effect remedies for noncompliance requiring notice and opportunity for a hearing.
The authority delegated in section B, subject to the exceptions in section C may be redelegated to employees of the Department in accordance with a written delegation.
This delegation revokes and supersedes the redelegations of authority published on October 2, 1998 (63 FR 53085), March 1, 1994 (59 FR 9764), and May 11, 1994 (59 FR 24463).
Section 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice of redelegation of authority.
In this notice, the Assistant Secretary for Public and Indian Housing redelegates the authority to administer the Title VI Loan Guarantee Program to the Director, Office of Loan Guarantee Program in the Office of Native American Programs of the Office of Public and Indian Housing.
July 18, 2003.
Edward Fagan, Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4126, Washington, DC 20410-5000; telephone (202) 401-7914 (this is not a toll-free number). For those needing assistance, this number may be accessed through TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The Title VI Loan Guarantee Program is authorized under Title VI of the Native American Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101
The Assistant Secretary for Public and Indian Housing redelegates authority and power with respect to the Title VI Loan Guarantee program to the Director, Office of Loan Guarantee, in the Office of Native American Programs of the Office of Public and Indian Housing.
The authority redelegated under Section A does not include: (1) The authority to issue or waive regulations; (2) the authority to sue and be sued; or (3) the authority to effect remedies for noncompliance requiring notice and an opportunity for an administrative hearing.
Section 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice of revocation and redelegation of authority.
This notice revokes prior redelegations of authority from the Assistant Secretary for Public and Indian Housing with respect to the administration of programs, under the authority of the Assistant Secretary, for Indians and Alaska Natives, to the Deputy Director for Headquarters Operations, and the Deputy for Field Operations, Office of Native American Programs (ONAP), within the Office of Public and Indian Housing, and then redelegates this authority to the Director of the Office of Grants Evaluation and the Director of the Office Grants Management, both within ONAP, Office of Public and Indian Housing.
July 18, 2003.
Edward Fagan, Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4126, Washington DC 20410-5000; telephone (202) 401-7914 (this is not a toll-free number). For those needing assistance, this number may be accessed through TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
In a notice published in the
This notice revokes all authority redelegated to the Deputy Director for Headquarters Operations and the Deputy for Field Operations, and redelegates the authority of the Assistant Secretary for Public and Indian Housing to administer HUD programs for Indians and Alaska Natives to the Director of the Office of Grants Evaluation and the Director of the Office of Grants Management, both offices within the Office of Public and Indian Housing.
The Assistant Secretary for Public and Indian Housing redelegates to the Director of the Office of Grants Evaluation and the Director of the Office Grants Management, within the Office of Public and Indian Housing, all authority to administer HUD programs for Indians and Alaska Natives, under the jurisdiction of the Assistant Secretary.
The authority redelegated under section A does not include: (1) The authority to issue or waive regulations; (2) the authority to sue and be sued; or (3) the authority to effect remedies for noncompliance requiring notice and an opportunity for an administrative hearing.
This redelegation revokes and supersedes all prior redelegations of authority from the Assistant Secretary for Public and Indian Housing with respect to the administration of Indian and Alaska Native programs, under the jurisdiction of the Assistant Secretary for Public and Indian Housing. Among the redelegations revoked, or revoked in part, are:
1. The redelegation of authority published on March 1, 1994 (59 FR 9765);
2. The redelegation of authority published on April 10, 1992 (57 FR 12516), with respect to Indian Housing Authorities only;
3. The redelegation of authority published on November 5, 1991 (56 FR 56524), with respect to Indian Housing Authorities only;
4. The redelegation of authority published on August 1, 1986 (51 FR 27604).
Section 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice of redelegation of authority.
This notice redelegates to the Deputy Assistant Secretary for Native American Programs in the Office of Native American Programs (ONAP) of the Office of Public and Indian Housing, the Director of the Denver ONAP Office of Grants Management, and the Director of the Denver ONAP Office of Grants Evaluation, the authority to administer Rural Housing and Economic Development grants awarded to Indian Tribes and tribal entities.
July 18, 2003.
Edward Fagan, Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4126, Washington DC 20410-5000; telephone (202) 401-7914 (this is not a toll-free number). For those needing assistance, this number may be accessed through TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The Rural Housing and Economic Development (RHED) program provides funding to Indian tribes, state housing finance agencies, state community and/or economic development agencies, local rural nonprofits and community development corporations to support innovative housing and economic development activities in rural areas. The program is authorized in annual HUD appropriations acts and was originally authorized in the Fiscal Year (FY) 1998 HUD Appropriation Act (Pub. L. 105-65, 111 Stat. 1344, 1357, approved October 27, 1997). The RHED program is administered by the Assistant Secretary for Community Planning and Development. However, because of the unique relationship between the Office of Public and Indian Housing and Indian tribes, the Secretary delegated to the Assistant Secretary for Public and Indian Housing the authority to administer RHED grants awarded to Indian tribes and tribal entities by the Assistant Secretary for Community Planning and Development.
This notice redelegates the authority to administer RHED grants from the Assistant Secretary for Public and Indian Housing to the Deputy Assistant Secretary for Native American Programs, the Director of the Denver ONAP Office of Grants Management, and the Director of the Denver ONAP Office of Grants Evaluation.
The Assistant Secretary for Public and Indian Housing redelegates the authority to administer RHED grants awarded to Indian Tribes and tribal entities to the Deputy Assistant Secretary for Native American Programs, and the Director, Denver ONAP Office of Grants Management, and the Director, Denver ONAP Office of Grants Evaluation in the Office of Native American Programs.
The authority redelegated under Section A does not include: (1) The authority to issue and waive regulations; and (2) the authority to sue and be sued.
The Assistant Secretary for Public and Indian Housing revokes all prior delegations pertaining to RHED grants awarded to Indian Tribes and tribal entities, including but not limited to, the delegation of authority published on September 28, 1999 (64 FR 52340).
Section 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to institute advisory opinion proceedings in the above-captioned investigation, and to deny a request for institution of enforcement proceedings.
Clara Kuehn, Esq., Office of the General Counsel, U.S. International Trade Commission, telephone 202-205-3012. Copies of the request for an advisory opinion, and all other nonconfidential documents filed in connection with the request, are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on March 25, 1998, based on a complaint by Fuji Photo Film Co., Ltd. (“Fuji”) of Tokyo, Japan, alleging unfair acts in violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, by several respondents in the importation and sale of certain lens-fitted film packages (
On July 31, 2001, the Commission instituted formal enforcement and advisory opinion proceedings at Fuji's request. 66 FR 40,721 (Aug. 3, 2001). CSI was named as a party respondent to the enforcement proceeding, and was also named as a party to the advisory opinion proceedings. 66 FR 40,721 (Aug. 3, 2001). On May 2, 2002, the presiding administrative law judge (“ALJ”) issued his enforcement initial determination (“EID”) and his initial advisory opinion (“IAO”). The Commission reviewed the EID and the IAO in part and remanded the issue of infringement of claim 9 of the '649 patent under the doctrine of equivalents to the ALJ in light of Supreme Court precedent handed down after the EID and the IAO were issued. 67 FR 52,741 (Aug. 13, 2002). The Commission also directed interested parties to file comments on the recommended remedy determinations made by the ALJ in the EID. 67 FR 52,741 (Aug. 13, 2002). On May 15, 2003, the Commission determined not to review the ALJ's supplemental IAO and EID, which issued on October 24, 2002. 68 FR 28,254 (May 23, 2003). The Commission also issued cease and desist orders against several respondents, including CSI, that were found to have violated the general exclusion order issued in the original investigation. 68 FR 28,254 (May 23, 2003).
On June 19, 2003, CSI filed a request pursuant to Commission rule 210.79 for an advisory opinion. On June 30, 2003, complainant Fuji and the Commission investigative attorney (“IA”) filed responses. Fuji's response included a request for initiation of an enforcement proceeding pursuant to Commission rule 210.75. On July 8, 2003, the IA filed a motion for leave to respond to Fuji's request for an enforcement proceeding with attached response. On July 9, 2003, CSI filed a motion for leave to reply to the responses of Fuji and the IA with attached reply, and a response to Fuji's request for an enforcement proceeding. The Commission granted both motions for leave.
The Commission examined CSI's request for an advisory opinion, and the responses and reply thereto, and determined that the request complies with the requirements for institution of an advisory opinion proceeding under Commission rule 210.79(a). The Commission examined Fuji's request for an enforcement proceeding and the responses thereto, and determined to deny the request. Accordingly, the Commission determined to institute an advisory opinion proceeding and referred CSI's request to the presiding ALJ for issuance of an initial advisory opinion.
This action is taken under the authority of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, and Commission rules 210.75(a) and 210.79(a), 19 CFR 210.75(a), 210.79(a).
By order of the Commission.
Parole Commission, Department of Justice.
9:30 a.m., Thursday, September 11, 2003.
5550 Friendship Blvd., Fourth Floor, Chevy Chase, MD 20815.
Open.
The following matters have been placed on the agenda for the open Parole Commission meeting:
1. Approval of Minutes of Previous Commission Meeting.
2. Reports from the Chairman, Commissioners, Legal, Chief of Staff, Case Operations, and Administrative Sections.
Thomas W. Hutchison, Chief of Staff, United States Parole Commission, (301) 492-5990.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506 (c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments concerning the extension of the information collection related to the 30 CFR Sections 57.5047; Gamma Radiation Exposure Records.
Submit comments on or before November 10, 2003.
Send comments to Jane Tarr, Management Analyst, Administration and Management 1100 Wilson Boulevard, Room 2171, Arlington, VA 22209-3939. Commenters are encouraged to send their comments on computer disk, or via Internet E-mail to
Jane Tarr, Management Analyst, Records Management Group, U.S. Department of Labor, Mine Safety and Health Administration, Room 2171, 1100 Wilson Boulevard, Arlington, VA 22209-3939. Ms. Tarr can be reached at
Under Section 103(c) of the Federal Mine Safety and Health Act of 1977, the Mine Safety and Health Administration (MSHA) is required to “* * * issue regulations required operators to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under any applicable mandatory health or safety standard promulgated under this Act.”
Gamma radiation occurs anywhere that radioactive materials are present, and has been associated with lunch cancer and other debilitating occupational diseases. Gamma radiation hazards may be found near radiation sources at surface operations using X-ray machines, weightometers, nuclear and diffraction units.
MSHA is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
A copy of the proposed information collection request can be obtained by contacting the employee listed in the
Annual gamma radiation surveys are required to be conducted—in all underground mines where radioactive ores are mined. Where the average gamma radiation measurements are in excess of 2.0 milliroentgens per hour in the working place, all persons affected are to be provided with gamma radiation dosimeters and records of cumulative individual gamma radiation exposures be kept.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506 (c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments concerning the extension of the information collection related to the 30 CFR Sections 49.2 through 49.4, 49.6 through 49.9, 75.1713-1, and 77.1702; Mine Rescue Teams; Arrangements for Emergency Medical Assistance; and Arrangements for Transportation for Injured Persons.
Submit comments on or before November 10, 2003.
Send comments to Jane Tarr, Management Analyst, Administration and Management 1100 Wilson Boulevard, Room 2171, Arlington, VA 22209-3939. Commenters are encouraged to send their comments on computer diskette, or via Internet E-mail to
Jane Tarr, Management Analyst, Records Management Group, U.S. Department of Labor, Mine Safety and Health Administration, Room 2171, 1100 Wilson Boulevard, Arlington, VA 22209-3939. Ms. Tarr can be reached at
Section 115 (e) of the Federal Mine Safety and Health Act of 1977 (Mine Act) required the Secretary of Labor (Secretary) to publish proposed regulations which provide that mine rescue teams be available for rescue and recovery work to each underground mine in the event of an emergency. In addition, the costs of making advance arrangements for such teams are to be borne by the operator of each such mine.
Congress considered the ready availability of mine rescue in the event of an accident to be vital protection for miners. Congress was concerned that too often in the past, rescue efforts at a disaster site have had to await the delayed arrival of skilled mine rescue teams. In responding to Congressional concerns, the Mine Safety and Health Administration (MSHA) promulgated 30 CFR Part 49, Mine Rescue Teams. The regulations set standards related to the
MSHA is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
A copy of the proposed information collection request can be obtained by contacting the employee listed in the For Further Information Contact section of this notice, or viewed on the Internet by accessing the MSHA home page (
Under 30 CFR part 49, Mine Rescue Teams, the regulations set standards related to the availability of mine rescue teams; alternate mine rescue capability for small and remote mines and mines with special mining conditions; inspection and maintenance records of mine rescue equipment and apparatus; physical requirements for mine rescue team members and alternates; and experience and training requirements for team members and alternates. Parts 75 and 77 requires that coal mine operators make arrangements with a licensed physician, medical service, medical clinic, or hospital and with an ambulance service to provide 24-hour emergency medical assistance and transportation. That information is to be posted at the mine.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
The Board of Directors of the Legal Services Corporation will meet September 15, 2003 from 1:30 p.m. until conclusion of the Board's agenda.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW, Washington, DC 20037.
Open, except that a portion of the meeting may be closed pursuant to a vote of the Board of Directors to hold an executive session. At the closed session, the Corporation's General Counsel will report to the Board on litigation to which the Corporation is or may become a party, and the Board may act on the matters reported. The closing is authorized by the relevant provisions of the Government in the Sunshine Act [5 U.S.C. 552b(c) (10)] and the corresponding provisions of the Legal Services Corporation's implementing regulation [45 CFR 1622.5(h)]. A copy of the General Counsel's Certification that the closing is authorized by law will be available upon request.
Open Session
1. Approval of agenda.
2. Approval of the minutes of the Board's meeting of June 27 & 28, 2003.
3. Approval of the minutes of the Executive Session of the Board's meeting of June 28, 2003.
4. Approval of the minutes of the Board's Annual Performance Reviews Committee meeting of June 27, 2003.
5. Recognition of the Friends of the Legal Services Corporation's Board of Directors.
6. Chairman's Report.
7. Members' Reports.
8. Acting Inspector General's Report.
9. President's Report.
10. Consider and act on the report of the Board's Provision for the Delivery of Legal Services Committee.
11. Consider and act on the report of the Board's Operations & Regulations Committee.
12. Consider and act on the report of the Board's Finance Committee.
13. Consider and act on the report of the Board's Search Committee for LSC President and Inspector General.
14. Report by Mauricio Vivero, LSC Vice President for Governmental Relations & Public Affairs, on LSC's High-tech Corporate Advisory Board and Corporate Sponsorship.
15. Consider and act on six-month contract extensions for LSC Vice Presidents Randi Youells, Mauricio Vivero, and Victor Fortuno.
16. Consider and act on other business.
17. Public comment.
18. Consider and act on whether to authorize an executive session of the Board to receive a briefing by the Acting Inspector General on the activities of the Office of the Inspector General and to consider and act on the Office of Legal Affairs' report on potential and pending litigation involving LSC.
19. Briefing
20. Consider and act on the Office of Legal Affairs' report on potential and pending litigation involving LSC.
21. Consider and act on adjournment of meeting.
Victor M. Fortuno, Vice President for Legal Affairs, General Counsel & Corporate Secretary, at (202) 295-1500.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW, Washington, DC 20037.
Open.
1. Approval of agenda.
2. Approval of the minutes of the
3. Report on LSC's
4. Report on LSC's budget projected operating expenses for April 1-June 30, 2003.
5. Consider and act on proposed
6. Report on LSC's budget projected operating expenses for July 1-September 30, 2003.
7. Consider and act on proposed
8. Consider and act on LSC's FY 2004
9. Public comment on LSC's FY 2005 Budget Mark.
10. LSC's Management recommendation on LSC's FY 2005 Budget Mark.
11. Consider and act on LSC's FY 2005 Budget Mark.
12. Consider and act on fixing the LSC President's salary to Level V of the Federal Government's Executive Schedule, thereby allowing the President's salary to adjust automatically as Level V adjusts.
13. Consider and act on other business.
14. Public comment.
15. Consider and act on adjournment of meeting.
Victor M. Fortuno, Vice President for Legal Affairs, General Counsel & Corporate Secretary, at (202) 295-1500.
The Operations & Regulations Committee of the Legal Services Corporation Board of Directors will meet on September 14, 2003. The meeting will begin at 2:30 p.m. and continue until the Committee concludes its agenda.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037.
Open.
1. Approval of agenda.
2. Approval of the Committee's meeting minutes of June 27, 2003.
3. Staff report on the responsibilities of LSC's Office of Compliance & Enforcement.
4. Staff reports on:
(a) LSC open rulemakings: 45 CFR parts 1604 (Outside Practice of Law); 1611 (Financial Eligibility); and 1626 (Alien Eligibility);
(b) Potential new rulemakings;
(c) Priorities for rulemakings; and
(d) Timeline for open and proposed rulemakings.
5. Public comment regarding:
(a) Status (as opposed to merits) of open rulemakings;
(b) Potential new rulemakings;
(c) Priorities for rulemakings; and
(d) Timeline for open and potential rulemakings.
6. Consider and act on open rulemakings.
7. Consider and act on potential new rulemakings.
8. Consider and act on priorities for rulemakings.
9. Consider and act on a timeline for open and proposed rulemakings.
10. Consider and act on a new Grant Assurance for 2004 regarding attorneys' fees in property recovery actions.
11. Other public comment.
12. Consider and act on other business.
13. Consider and act on adjournment of meeting.
Victor M. Fortuno, Vice President for Legal Affairs, General Counsel & Corporate Secretary, at (202) 295-1500.
The Committee on Provision for the Delivery of Legal Services of the Legal Services Corporation Board of Directors will meet on September 14, 2003. The meeting will begin at 10:30 a.m. and continue until the Committee concludes its agenda.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037
Open.
1. Approval of agenda.
2. Approval of minutes of the Committee's meeting of June 27, 2003.
3. Short Presentations on the Critical Issues and Challenges Facing the National Legal Services Delivery System and the Clients Served by Legal Services Programs:
• Alan Houseman, Center for Law & Social Policy (CLASP); Don Saunders and Teresa Cosby, National Legal Aid & Defender Association (NLADA).
• Lisa Oshiro, Native American Indian Legal Services (NAILS).
• Wayne Moore, American Association of Retired Persons (AARP).
• Susan Patnode, Rural Network.
• Sarah Singleton, ABA Standing Committee on Legal Aid & Indigent Defendants (SCLAID).
• Lillian Johnson and Don Isaac, African-American Project Directors Association (AAPDA).
• Faith Rivers, National Association of IOLTA Providers (NAIP).
• Luis Jaramillo, Farmworker Project Group.
4. Consider and act on other business.
5. Public comment.
6. Consider and act on adjournment of meeting.
Victor M. Fortuno, Vice President for Legal Affairs, General Counsel & Corporate Secretary, at (202) 295-1500.
The Search Committee for LSC President and Inspector General of the Legal Services Corporation's Board of Directors will meet on September 15, 2003. The meeting will begin at 11 a.m. and continue until conclusion of the Committee's agenda.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037.
Open.
Open Session
1. Approval of agenda.
2. Approval of the minutes of the Committee's meeting of August 6, 2003.
3. Consider and act on qualifications for the position of LSC President.
4. Consider and act on the process for the selection of an LSC President, including, but not limited to the scheduling of candidate interviews and changes to the Committee's aspirational timeline.
5. Public comment.
6. Consider and act on other business.
7. Consider and act on adjournment of meeting.
Victor M. Fortuno, Vice President for Legal Affairs, General Counsel and Corporate Secretary, at (202) 295-1500.
National Aeronautics and Space Administration.
Notice of prospective patent license.
NASA hereby gives notice that the Nova-Tech Engineering, Inc., of Mountlake Terrace, Washington, has applied for a co-exclusive license to practice the invention disclosed in NASA Case No. MFS-30122-1 entitled “Auto-Adjustable Pin Tool For Friction Stir Welding.” Written objections to the prospective grant of a license should be sent to Mr. James J. McGroary, Patent Counsel/LS01, Marshall Space Flight Center, Huntsville, AL 35812. NASA has not yet made a determination to grant the requested license and may deny the requested license even if no objections are submitted within the comment period.
Responses to this notice must be received by September 24, 2003.
Sammy A. Nabors, Technology Transfer Department/CD30, Marshall Space Flight Center, Huntsville, AL 35812, (256) 544-5226.
National Aeronautics and Space Administration (NASA).
Notice of Membership of SES Performance Review Board.
The Civil Service Reform Act of 1978, Public Law 95-454 (Section 405) requires that appointments of individual members to a Performance Review Board be published in the
The performance review function for the SES in the National Aeronautics and Space Administration is being performed by the NASA Performance Review Board (PRB) and the NASA Senior Executive Committee. The latter performs this function for senior executives who report directly to the Administrator or the Deputy Administrator and members of the PRB. The following individuals are serving on the Board and the Committee:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
9 a.m. (EDT), September 15, 2003.
4th Floor, Conference Room, 1250 H Street, NW., Washington, DC.
Parts will be open to the public and parts closed to the public.
1. Approval of minutes of the August 18, 2003, Board meeting.
2. Thrift Savings Plan report by the Executive Director.
a. Loan procedures
b. Lifestyle funds
c. ETAC
d. Investment returns
3. Audits.
4. Approval of the FY 2004 Budget and FY 2005 Estimates.
5. Personnel matters.
Thomas J. Trabucco, Director, Office of External Affairs, (202) 942-1640.
Nuclear Regulatory Commission.
Notice of Availability of Final Report.
The Nuclear Regulatory Commission (NRC) is announcing the availability of the final report “Environmental Review Guidance for Licensing Actions Associated with NMSS Programs” (NUREG-1748). This document provides guidance for the planning and implementation of National Environmental Policy Act requirements for activities performed in the Office of Nuclear Materials Safety and Safeguards (NMSS). Public comments were solicited as noticed in the
NUREG-1748 is available for inspection and copying for a fee at the Commission's Public Document Room, U.S. NRC's Headquarters Building, 11555 Rockville Pike (first floor), Rockville, Maryland, and electronically from the ADAMS Public Library component on the NRC Web Site,
Matthew Blevins, U.S. Nuclear Regulatory Commission, Mail Stop T7-J8, Washington, DC 20555, Phone Number: (301) 415-7684, e-mail:
This guidance document, NUREG-1748, provides general procedures for the environmental review of licensing actions regulated by NMSS. Although the main focus of this guidance is the NRC staff's environmental review process, it also contains related information which applicants and licensees may find useful. Chapter 1 provides a summary and overview of the guidance. This chapter briefly discusses the three ways in which an environmental review is performed, either by meeting the criteria for a categorical exclusion or by preparing an environmental assessment (EA) or environmental impact statement (EIS). This chapter also discusses early planning for an EA or EIS and methods of using previous environmental analyses related to the proposed action. Chapter 2 discusses the categorical exclusions and the basis of their use. Chapter 3 discusses the EA process, including preparation and content of the EA, and preparation of the Finding of No Significant Impact. Chapter 4 discusses the process of preparing an EIS, from developing a project plan through scoping, consultations and public meetings, to preparing the Record of Decision. Chapter 5 discusses the technical content of the EIS, and Chapter 6 discusses environmental information that should be considered by applicants and licensees in preparing their environmental report.
For the Nuclear Regulatory Commission.
Notice is given, in accordance with the provisions of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
The project is an important component of the Presidio Trust Management Plan (PTMP), the Trust's comprehensive land use plan and policy framework for Area B of the Presidio, adopted in August 2002. In the PTMP, the PHSH district was identified as an area for reuse as a residential and educational community. Its centerpiece would be the rehabilitation and reuse of the historic Public Health Service Hospital (PHSH or Building 1801) and of the other historic structures in the district. Future consideration would be given to demolition and new replacement construction up to specified limits.
The district includes the PHSH and its complex of nearby dormitories, offices, residences and recreational buildings on the lower plateau, possibly Battery Caulfield on the upper plateau at the north end of the district, and several outlying building premises. The project is needed to arrest the physical deterioration of the buildings, protect the National Historic Landmark District and rehabilitate the district's structures consistent with the Secretary of Interior's Standards; improve the appearance and vitality of some or all of the district; reuse the buildings consistently with the PTMP land use options; and generate revenue for the long-term operation and improvement of the Presidio. In connection with the project, the Trust will adopt planning and design guidelines, approve a development agreement and lease for buildings and premises within the district, approve associated building
Building space within the district totals approximately 400,000 square feet (sf). Building 1801 includes a historic structure of approximately 173,000 sf and non-historic additions (or “wings”) totaling approximately 124,700 sf. Pursuant to draft planning and design guidelines, non-historic portions of the hospital building may be removed. Although not required, replacement construction up to an amount equivalent to the square footage removed, not to exceed 130,000 sf, may be considered within the district.
The following four project alternatives are being considered for evaluation in the EA. These include a “no action” alternative required by the NEPA, which in this case will constitute the land use scenario analyzed in the PTMP EIS. Three action alternatives, each with differences in the treatment of Building 1801 and in the proposed amount and location of demolition and new replacement construction, will also be evaluated. The Trust's selected action at the conclusion of the environmental review process may combine various elements of the alternatives, or fall within the range they represent.
The EA will tier from the PTMP Environmental Impact Statement (EIS) by incorporating by reference, as appropriate, the information and analysis in the PTMP EIS, and will focus the EA on issues specific to each proposed project alternative. The Trust encourages all interested individuals, organizations and agencies to provide comments on the nature and extent of issues, potential impacts and alternatives to be addressed in the EA. As part of the scoping process, the Trust will conduct a public Trust Board meeting in October or November, at a time and location to be announced, at which the Trust Board will accept oral scoping comments from the public on the proposed action described herein, the alternatives to be studied under the NEPA, and the scope of the EA. For those unable to attend this meeting, an information packet is available upon request (see Contact information below). The Trust will provide informal information updates and notices concerning the project through postings on its Web site at
To request the information packet, provide comments or obtain information on meeting locations, please contact John Pelka, NEPA Compliance Coordinator, the Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA 94129-0052 (fax: 415/561-2790) or
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The CHX proposes to amend its membership dues and fees schedule (the “Fee Schedule”), effective August 1, 2003, to (1) modify the Fee Schedule by reducing transaction fees for executions through floor brokers (and market makers) that exceed specific thresholds, while eliminating the caps previously associated with those transaction fees; (2) re-bill fees associated with the use of the NYFIX system
The text of the proposed rule change is below. Proposed additions are in
The Earned Credit
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it had received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The proposed rule change amends the CHX Fee Schedule in several ways. First, the proposal revises the Exchange's fees for agency transactions executed through floor brokers in both over-the-counter (“OTC”) and listed securities by reducing transaction fees for executions that exceed specific thresholds and eliminating the caps associated with those fees.
Another change to the Fee Schedule allows the Exchange to re-bill its floor brokers a portion of the network and connection costs associated with providing access to the NYFIX system, which can be used to deliver orders to the trading floor for handling by CHX floor brokers. The Exchange will pay the first $15,000 each month associated with the use of this system. The Exchange's floor brokers will be assessed any remaining costs, based on the proportion of each firm's use of the network during the month.
Finally, the proposal modifies the floor broker earned credit program to permit floor brokers to receive additional earned credits if either (a) the number of overall billable shares executed by floor brokers at the Exchange increases in a month over the average number of billable shares executed in a month by floor brokers at the Exchange in the first quarter of 2003 or (b) the Exchange recognizes additional revenues from the changes it has made to its transaction fee schedule as part of this submission. If the number of overall billable shares executed by floor brokers reaches the threshold described above (
All of these fee changes took effect August 1, 2003. Among other things, the fee changes are designed ultimately to increase the Exchange's trading volume in securities traded by its floor brokers and to increase the Exchange's revenues. The Exchange believes that these changes reflect a reasonable allocation of dues, fees and other
The CHX believes that its proposal is consistent with Section 6(b) of the Act
The CHX does not believe that the proposed rule change, as amended, will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The CHX neither solicited nor received written comments concerning the proposed rule change, as amended.
Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the CHX, it has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filings will also be available for inspection and copying at the principal office of the CHX. All submissions should refer to File No. SR-CHX-2003-22 and should be submitted by September 30, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq has filed with the Commission a proposed rule change to modify the fees for the listing of additional shares program and to institute a record-keeping fee for certain changes by issuers.
The text of the proposed rule change is below. Proposed new language is in
(a) No change.
(1) No change.
(2) The fee in connection with additional shares shall be $
(3)-(4) No change.
(c)-(d) No change.
(a) No change.
(1) No change.
(2) The fee in connection with additional shares shall be $
(3)-(4) No change.
(c)-(d) No change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to revise the fees for the listing of additional shares (“LAS”) program and to institute a record-keeping fee for certain changes by issuers.
The LAS program involves notification and fee requirements for the issuance of additional shares. Specifically, an issuer must notify Nasdaq prior to a transaction that may implicate the corporate governance requirements and thereafter pay a fee that is based on the change in the issuer's total shares outstanding as reported in its periodic reports filed with the SEC. Revenues from the LAS program are used to fund issuer-related operations that include educational initiatives, issuer service initiatives and NASD surveillance measures.
NASD Rules 4510(b) and 4520(b) currently provide that the fee for the listing of additional shares is $2,000 or $0.01 per additional share, whichever is higher, up to a maximum of $22,500 per quarter and an annual maximum of $45,000 per issuer. There is no fee for issuances of up to 49,999 additional shares per quarter.
Nasdaq proposes to modify the LAS program fees in two ways. First, the minimum fee would be increased from $2,000 to $2,500 for issuances of between 50,000 and 250,000 additional shares.
Nasdaq also proposes to institute a $2,500 record-keeping fee for certain changes made by issuers. Such a fee would be used to address the costs associated with revising Nasdaq's records when issuers engage in certain actions, including a change of name, a change in the par value or title of securities, or a voluntary change in trading symbol.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to file number SR-NASD-2003-127 and should be submitted by September 30, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Phlx proposes to extend its pilot program pertaining to the Options Floor Broker Management System (the “System”) until September 12, 2003.
The text of the proposal rule change is set forth below. New text is in italics; deletions are in brackets.
Rule 1080. (a)-(j)
No change.
Commentary:
.01-.05 No change.
.06 Options Floor Broker Management System. The Options Floor Broker Management System is a component of AUTOM designed to enable Floor Brokers and/or their employees to enter, route and report transactions stemming from options orders received on the Exchange. The Options Floor Broker Management System also is designed to establish an electronic audit trail for options orders represented and executed by Floor Brokers on the Exchange, such that the audit trail provides an accurate, time-sequenced record of electronic and other orders, quotations and transactions on the Exchange, beginning with the receipt of an order by the Exchange, and further documenting the life of the order through the process of execution, partial execution, or cancellation of that order. The Exchange will begin deployment of the Options Floor Broker Management System on July 31, 2003, with floor-wide deployment to be completed not later than [August 29]
In its filing with the Commission, the Phlx included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Phlx 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 the effectiveness of the rules governing the System beyond the current effective date of August 29, 2003, in order to continue to have rules in place concerning the System and to ensure that Floor Brokers using the System during the continuing deployment will not be in violation of current Exchange rules regarding ticket marking requirements.
The System is designed to enable Floor Brokers and/or their employees to enter, route and report transactions stemming from options orders received on the Exchange. Floor Brokers or their employees access the System through an electronic Exchange-provided handheld device on which they have the ability to enter the required information as set forth in Phlx Rule 1063(e), either from their respective posts on the options trading floor or in the trading crowd. The System will eventually replace the Exchange's current Floor Broker Order Entry System (“FBOE”),
All of the rules pertaining to the System adopted in July and effective through August 29
The Exchange believes that the System will enable Floor Brokers to handle orders they represent more efficiently, and will further enable the Exchange to comply with the audit trail requirement for non-electronic orders required under the Order Instituting Public Administrative Proceedings Pursuant to Section 19(h)(1) of the Securities Exchange Act of 1934, Making Findings and Imposing Remedial Sanctions.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
Because the proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative for 30 days (or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest) after the date of the filing, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Commission has decided, consistent with the protection of investors and the public interest, to waive the five-day pre-filing notice and 30-day operative date to allow the System and rules to continue on a pilot basis without interruption until September 12, 2003.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Phlx. All submissions should refer to File No. SR-Phlx-2003-60 and should be submitted by September 30, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
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.
Department of State.
Notice.
The Department of State has submitted the following information collection request to the Office of Management and Budget (OMB) for approval in accordance with the Paperwork Reduction Act of 1995. This new Internet Based Information Collection system permits U.S. citizens who travel or reside abroad to register their destination and emergency contacts with the Department of State. This facilitates the provision of emergency assistance to U.S. citizens during crisis or disaster. Comments should be submitted within 30 days of the publication of this notice.
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 Mike Meszaros, Bureau of Consular Affairs, Overseas Citizens Services, Office of Policy Review and Interagency Liaison, 1800 G Street NW., Washington, DC 20006 who may be reached on (202) 312-9750.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 [79 Stat. 985; 22 U.S.C. 2459], Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 [112 Stat. 2681,
For further information, including a list of the exhibit objects, contact 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.
Bureau of Nonproliferation, Department of State.
Notice.
Pursuant to section 2(b)(4) of the Export-Import Bank Act of 1945, as amended, the President has determined and certified to Congress that it is in the national interest for the Export-Import Bank to guarantee, insure, or extend credit, or participate in the extension of credit in support of United States exports to Iraq.
October 17, 2003.
Caroline R. Russell, Office of Regional Affairs, Bureau of Nonproliferation, Department of State (202-647-9786).
In accordance with section 2(b)(4) of the Export-Import Bank Act of 1945, as amended, the Department of State determined that, based on Iraqi activities first discovered in 1991, Iraq has materially violated a safeguards agreement with the International Atomic Energy Agency (IAEA). The violations occurred under the government of Saddam Hussein, which is no longer in power. As a result of this determination, under section 2(b)(4) of the Export-Import Bank Act of 1945, the Board of Directors of the Export-Import Bank is prohibited from giving “approval to guarantee, insure, or extend credit, or participate in the extension of credit in support of United States exports” to Iraq.
The President has determined and certified to Congress pursuant to section 2(b)(4) that “it is in the national interest” to waive the restrictions in the law and allow the Export-Import Bank to support United States exports to Iraq. This Presidential determination will enable the Export-Import Bank to approve support for United States exports to Iraq beginning October 17, 2003 (45 days after the date of the President's determination and certification).
Tennessee Valley Authority (TVA).
Notice.
This notice is provided in accordance with Office of Management and Budget (OMB) regulations governing the approval of information collection requirements contained in a recently published final rule (40 CFR 1320.11). On August 7, 2003, TVA published in the
The information collection requirements contained in the final rule published in the
Wilma H. McCauley, Tennessee Valley Authority, 1101 Market Street (EB 5B), Chattanooga, Tennessee 37402-2801; (423) 751-2523,
Federal Aviation Administration (FAA), DOT.
Notice of issuance of advisory circular.
The Federal Aviation Administration announces the issuance of Advisory Circular (AC) 25.613-1, “Material Strength Properties and Material Design Values.” The advisory circular provides guidance related to a recently published amendment concerning material strength properties and material design values for transport category airplanes.
Advisory Circular 25.613-1 was issued by the FAA Transport Airplane Directorate on August 6, 2003.
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Government/Industry Free Flight Steering Committee Meeting.
The FAA is issuing this notice to advise the public of a meeting of the RTCA Government/Industry Free Flight Steering Committee.
The meeting will be held September 24, 2003, from 1-3:30 pm.
The meeting will be held at FAA Headquarters, 800 Independence Avenue, SW., Bessie Coleman Conference Center (Rm. 2AB), Washington, DC 20591.
RTCA Secretariat, 1828 L Street, NW, Suite 805, Washington, DC 20036; telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Free Flight Steering Committee meeting.
Non-Government attendees to the meeting must go through security and be escorted to and from the conference room.
The agenda will include:
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statemenets at the meeting. Persons wishing to present statement or obtain information should contact the person listed 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 Des Moines International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 158).
Comments must be received on or before October 9, 2003.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Federal Aviation Administration, Central Region, Airports Division, 901 Locust Street, Kansas City, MO 64106.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. William F. Flannery, Director of Aviation, Des Moines International Airport, at the following address: City of Des Moines, 5800 Fleur Drive, Des Moines, Iowa 50321.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the Des Moines International Airport, Des Moines, Iowa, under section 158.23 of part 158.
Nicoletta S. Oliver, Airports Compliance Specialist, FAA, Central Region, 901
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Des Moines International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 185).
On August 21, 2003, the FAA determined that the application to impose and use the revenue from a PFC submitted by the City of Des Moines, was substantially complete within the requirements of Section 158.25 of part 158. The FAA will approve or disapprove the application, in whole or in part, no later than December 13, 2003.
The following is a brief overview of the application.
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Des Moines International Airport, Des Moines, Iowa.
Federal Transit Administration, DOT.
Notice of request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the Federal Transit Administration (FTA) to request the Office of Management and Budget (OMB) to extend the following currently approved information collection: Metropolitan and Statewide Transportation Planning.
Comments must be submitted before November 10, 2003.
All written comments must refer to the docket number that appears at the top of this document and be submitted to the United States Department of Transportation, Central Dockets Office, PL-401, 400 Seventh Street, SW., Washington, DC 20590. All comments received will be available for examination at the above address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard/envelope.
Ms. Candace Noonan, Office of Planning, (202) 366-1648.
Interested parties are invited to send comments regarding any aspect of this information collection, including: (1) The necessity and utility of the information collection for the proper performance of the functions of the FTA; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the collected information; and (4) ways to minimize the collection burden without reducing the quality of the collected information. Comments submitted in response to this notice will be summarized and/or included in the request for OMB extension of this information collection.
In addition to serving as a management tool for MPOs and state DOTs, the UPWP is used by both FTA and FHWA to monitor the transportation planning activities of those agencies. It is also needed to establish national outyear budgets and regional program plans, develop policy on using funds, monitor state and local compliance with national technical emphasis areas, respond to Congressional inquiries, prepare congressional testimony, and ensure efficiency in the use and expenditure of federal funds by determining that planning proposals are both reasonable and cost-effective. 49 U.S.C. 5303 and 23 U.S.C. 134(h) require the development of TIPs for urbanized, STIPs are mandated by 23 U.S.C. 235(f). After approval by the Governor and MPO, metropolitan TIPs in attainment areas are to be incorporated directly into the STIP. For nonattainment areas, FTA/FHWA must make a conformity finding on the TIPs before including them into the STIP. The complete STIP is then jointly reviewed and approved or disapproved by FTA and FHWA. These conformity findings and approval actions constitute the determination that states are complying with the requirements of 23 U.S.C. 235 and 49 U.S.C. Section 5303 as a condition of eligibility for federal-aid funding. Without these documents, approvals and findings, capital and/or operating assistance cannot be provided.
Research and Special Programs Administration (RSPA), DOT.
Notice and request for comments.
This notice requests public participation in the Office of Management and Budget (OMB) approval process for the renewal of an existing RSPA information collection. This information collection concerns a pipeline safety regulation that requires hazardous liquid pipeline operators who operate more than 500 miles of pipeline to follow certain protocols in areas designated as high consequence areas (HCAs). RSPA intends to request OMB approval for renewal of this information collection under the Paperwork Reduction Act of 1995 and 5 CFR part 1320. The purpose of this notice is to allow the public 60 days from the date of this notice to send in their comments.
Comments on this notice must be received by November 10, 2003, to be assured of consideration.
Interested persons are invited to send comments in duplicate to the Research and Special Programs Administration, U.S. Department of Transportation, Dockets Facility, Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001 or e-mail to dms.dot.gov. Comments can be reviewed at the dockets facility which is open from 10 a.m. to 5 p.m., Monday through Friday, except on Federal holidays, when the facility is closed. Comments must identify docket number of this notice. Persons should submit the original documents and one (1) copy. Persons wishing to receive confirmation of receipt of their comments must include a stamped, self-addressed postcard. Please identify the docket number shown in the heading of this notice. Documents pertaining to this notice can be viewed in this docket. The docket can also be viewed electronically at
Marvin Fell, (202) 366-6205, to ask questions about this notice; or write by e-mail to
Comments are invited on: (a) The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
All timely written comments to this notice will be summarized and included in the request for OMB approval. All comments will also be available to the public in the docket.
On August 20, 2003, the Illinois Department of Transportation (IDOT) filed with the Surface Transportation Board (Board) an application under 49 U.S.C. 10903 seeking the adverse abandonment of the East St. Louis Junction Railroad Company's (ESLJ) line of railroad between milepost 0.0 and milepost 1.16, plus 6.40 miles of switch track and .34 miles of spur track, a total of 7.90 miles of track, in the National Stock Yards in St. Clair County, IL. IDOT also requests that the Board grant an adverse discontinuance of rail service over the subject rail property provided by ESLJ's lessee, Union Pacific Railroad Company (UP). The line traverses United States Postal Service ZIP Code 62071, and includes the station of National Stock Yards.
Appreciable portions of the land underlying the railroad line proposed for abandonment and discontinuance of service are required for the construction of a relocated Illinois Route 3 and the construction of a connection from Interstate Highway I-64 in Illinois to a proposed New Mississippi River Bridge and relocated Interstate Highway I-70. This abandonment will permit the grade separation of all state highways and railroad lines in this area.
Based on information in IDOT's possession, the line does not contain Federally granted rights-of-way. Any documentation in IDOT's possession will be made available promptly to those requesting it. The applicant's entire case for abandonment and discontinuance was filed with the application.
This line of railroad has not appeared on the railroads' system diagram map in Category 1.
The interests of UP's employees will be protected by the conditions set forth in
In an application by a third party for a determination that the public convenience and necessity permits service over a line to be discontinued and the line itself to be abandoned, the issue before the Board is whether the public interest requires that the line in question be retained as part of the national rail system. By granting a third party (or “adverse”) application, the Board withdraws its primary jurisdiction over the line. Questions concerning the disposition of the line, including the adjudication of various claims of ownership or other rights and obligations, are then left to state or local authorities.
Because IDOT intends to convert the property underlying the subject rail line to highway purposes, conflicting public use requests are not appropriate, and offers of financial assistance to acquire or subsidize service on the line will not be entertained in this proceeding.
Any interested person may file with the Board its protest of, or written comments concerning, the proposed abandonment and discontinuance of service.
Protests must contain that party's entire case in opposition (case in chief) including the following: (1) Protestant's name, address, and business; (2) a statement describing protestant's interest in the proceeding including: (i) A description of the protestant's use of the line; (ii) if protestant does not use the line, information concerning the group or public interest it represents; and (iii) if protestant's interest is limited to the retention of service over a portion of the line, a description of the portion of the line subject to protestant's interest (with milepost designations if available); (3) specific reasons why protestant opposes the application including information regarding protestant's reliance on the involved service (this information must be supported by affidavits of persons with personal knowledge of the fact(s)); and (4) any rebuttal of material submitted by applicant.
In addition, a commenting party or protestant may provide a statement of position and evidence regarding: (i) Environmental impact; (ii) impact on rural and community development; or (iii) recommended provisions for protection of the interests of employees.
All filings in response to this notice must refer to STB Docket No. AB-838 and STB Docket No. AB-33 (Sub-No. 199), and should be sent to: (1) Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001, and (2) Fritz R. Kahn, Esq., 1920 N Street, NW., (8th floor), Washington, DC 20036-1601. The original and 10 copies of all comments or protests shall be filed with the Board, together with a certificate of service. Except as otherwise set forth in part 1152, every document filed with the Board must be served on all parties to the abandonment and discontinuance proceeding. 49 CFR 1104.12(a).
Persons seeking information concerning the filing of protests may contact the Board's Office of Public Services at (202) 565-1592 or refer to the full abandonment and discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 565-1539. [TDD for the hearing impaired is available at 1-800-877-8339.]
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by SEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact SEA to obtain a copy of the EA (or EIS). EAs in abandonment or discontinuance proceedings normally will be made available within 33 days of the filing of the application. The deadline for submission of comments on the EA will generally be within 30 days of its service. The comments received will be addressed in the Board's decision. A supplemental EA or EIS may be issued where appropriate.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Norfolk Southern Railway Company (NSR) has filed a notice of exemption under 49 CFR 1152 Subpart
NSR has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) no overhead traffic has moved over the line for at least 2 years and overhead traffic, if there were any, could be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8 (historic reports), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
A copy of any petition filed with the Board should be sent to NSR's representative: James R. Paschall, General Attorney, Norfolk Southern Corporation, Three Commercial Place, Norfolk, VA 23510.
If the verified notice contains false or misleading information, the exemption is void
NSR has filed an environmental report which addresses the abandonment's effects, if any, on the environment or historic resources. SEA will issue an environmental assessment (EA) by September 12, 2003. Interested persons may obtain a copy of the EA by writing to SEA (Room 500, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 565-1539. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), NSR shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by NSR's filing of a notice of consummation by September 9, 2004, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Under the authority granted to me as Chief Counsel of the Internal Revenue Service by the General Counsel of the Department of the Treasury by General Counsel Order No. 21 (Rev. 4), pursuant to the Civil Service Reform Act, I have appointed the following persons to the Legal Division Performance Review Board, Internal Revenue Service Panel:
1. Chairperson, William Fox, Acting Deputy General Counsel.
2 John M. Dalrymple, Deputy Commissioner (Operations Support).
3. Eric Solomon, Deputy Assistant Secretary (Regulatory Affairs).
This publication is required by 5 U.S.C. 4314(c)(4).
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that a meeting of the Veterans' Advisory Committee on Environmental Hazards will be held on Wednesday and Thursday, October 8-9, 2003, from 9 a.m. to 5 p.m. each day. The meeting will be held at the Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 430, Washington, DC 20420. The meeting is open to the public.
The purpose of the Committee is to provide advice to the Secretary of Veterans Affairs on adverse health effects that may be associated with exposure to ionizing radiation and to make recommendations on proposed standards and guidelines regarding VA benefit claims based upon exposure to ionizing radiation.
The major items on the agenda for both days will be discussions and analyses of medical and scientific papers concerning the health effects of exposure to ionizing radiation. On the basis of those analyses and discussions, the Committee may make recommendations to the Secretary concerning diseases that are the result of exposure to ionizing radiation. The agenda for the second day will include planning future Committee activities and assignment of tasks among the members.
Those who wish to attend should contact Ms. Ersie Farber-Collins, of the Department of Veterans Affairs, Compensation and Pension Service, 810 Vermont Avenue, NW., Washington, DC 20420, at (202) 273-7268, or by fax at (202) 275-1728, prior to October 7, 2003. Members of the public may submit written questions or prepared statements for review by the Committee in advance of the meeting. Statements must be received at least five (5) days prior to the meeting and should be sent to Ms. Farber-Collins' attention at the address given above. Those who submit material may be asked to clarify it prior to its consideration by the Committee.
By Direction of the Secretary:
In rule document 03-21485 beginning on page 51420 in the issue of Tuesday, August 26, 2003, make the following corrections:
1. On page 51420, in the first column, under the heading
2. On page 51422, in the second column, in the table of contents, the heading “
3. On the same page, in the same column, add the following undesignated center heading directly under the subpart heading:
4. On page 51425, in the second column, in § 102-38.175, in the section heading, in the third line, “
5. On the same page, in the same column, in the same section, in the second line, “From Federal Procurement” should read, “from Federal Procurement”.
6. On page 51427, in the second column, in § 102-38.325, the section should be combined into one paragraph.
In rule document 03-21610 beginning on page 51153 in the issue of Tuesday, August 26, 2003, make the following correction:
On page 51167, in the first column, in §416.994(b)(5)(vi) in the first line, “~your impairment(s)” should read “~If your impairment(s).”
In rule document 03-16229 beginning on page 38177 in the issue of Friday, June 27, 2003 make the following corrections:
1. On page 38178, in the second column, under the heading “
2. On the same page, in the same column, in §1.382-1, the regulatory material following
3. On the same page, in the third columnthe section heading number should read “§ 1.382-10T”.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule clarifies policies relating to the responsibilities of Medicare-participating hospitals in treating individuals with emergency medical conditions who present to a hospital under the provisions of the Emergency Medical Treatment and Labor Act (EMTALA).
The final rule responds to public comments received on a May 9, 2002 proposed rule (67 FR 31404) that both reiterated the agency's interpretations under EMTALA and proposed clarifying changes relating to the implementation of the EMTALA provisions. These reiterations and clarifying changes related to, among other areas, seeking prior authorization from insurers for services, emergency patients presenting at off-campus outpatient clinics that do not routinely provide emergency services, the applicability of the EMTALA provisions to hospital inpatients and outpatients, the circumstances under which physicians must serve on hospital medical staff “on-call” lists, and the responsibilities of hospital-owned ambulances.
These reiterations and clarifying changes are needed to ensure uniform and consistent application of policy and to avoid any misunderstanding of EMTALA requirements by individuals, physicians, or hospital employees.
The provisions of this final rule are effective on November 10, 2003.
Thomas Gustafson, (410) 786-4487.
This
Sections 1866(a)(1)(I), 1866(a)(1)(N), and 1867 of the Social Security Act (the Act) impose specific obligations on Medicare-participating hospitals and critical access hospitals (CAHs) that offer emergency services. (Throughout this final rule, when we reference the obligation of a “hospital” under these sections of the Act and in our regulations, we mean to include CAHs as well.) These obligations concern individuals who come to a hospital emergency department and request examination or treatment for medical conditions, and apply to all of these individuals, regardless of whether or not they are beneficiaries of any program under the Act. Section 1867 of the Act sets forth requirements for medical screening examinations for medical conditions, as well as necessary stabilizing treatment or appropriate transfer. In addition, section 1867(h) of the Act specifically prohibits a delay in providing required screening or stabilization services in order to inquire about the individual's payment method or insurance status. Section 1867(d) of the Act provides for the imposition of civil monetary penalties on hospitals and physicians responsible for the following: (a) Negligently failing to appropriately screen an individual seeking medical care; (b) negligently failing to provide stabilizing treatment to an individual with an emergency medical condition; or (c) negligently transferring an individual in an inappropriate manner. (Section 1867(e)(4) of the Act defines “transfer” to include both transfers to other health care facilities and cases in which the individual is released from the care of the hospital without being moved to another health care facility.)
These provisions, taken together, are frequently referred to as the Emergency Medical Treatment and Labor Act (EMTALA), also known as the patient antidumping statute. EMTALA was passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Congress enacted these antidumping provisions in the Social Security Act because of its concern with an “increasing number of reports” that hospital emergency rooms were refusing to accept or treat individuals with emergency conditions if the individuals did not have insurance:
“* * * the Committee is most concerned that medically unstable patients are not being treated appropriately. There have been reports of situations where treatment was simply not provided. In numerous other situations, patients in an unstable condition have been transferred improperly, sometimes without the consent of the receiving hospital.
“There is some belief that this situation has worsened since the prospective payment system for hospitals became effective. The Committee wants to provide a strong assurance that pressures for greater hospital efficiency are not to be construed as license to ignore traditional community responsibilities and loosen historic standards.
“[Under the statute] [a]ll participating hospitals with emergency departments would be required to provide an appropriate medical screening examination for any individual who requests it (or has a request made on his [or her] behalf) to determine whether an emergency medical condition exists or if the patient is in active labor.” (H.R. Rept. No. 99-241, Part I, 99th Cong., 1st Sess. (1985), p.27.)
In addition, section 1867(d)(2) of the Act provides for a private right of enforcement for any individual who is harmed as a “direct result” of a violation of the Act. In enacting this section of the law, Congress did not intend for the statute to be used as a Federal malpractice statute. Indeed, many courts are in agreement that EMTALA is not a Federal malpractice statute (for example,
The regulations implementing section 1867 of the Act are found in 42 CFR 489.24, Special responsibilities of Medicare hospitals in emergency cases. Existing § 489.24 provides for the following:
• Requires that when an individual presents to a hospital's emergency department and a request is made on the individual's behalf for examination or treatment of a medical condition, the hospital must provide for an appropriate medical screening examination to determine whether or not an emergency medical condition exists. (Paragraph (a))
• Defines certain terms, including “comes to the emergency department,” “emergency medical condition,” “stabilized,” and “to stabilize.” (Paragraph (b))
• Addresses procedures a hospital must follow when it determines, with respect to a patient, that an emergency medical condition exists. If the hospital determines that an emergency medical condition exists, the hospital must provide for further medical examination and treatment as required to stabilize the individual. If the hospital does not have the capabilities to stabilize the individual, an appropriate transfer to another facility is permitted. (Paragraph (c)) A transfer is appropriate when the medical benefits of the transfer outweigh the medical risks of the transfer and other requirements, specified in the regulations, are met. (Paragraph (d)) In addition, the hospital may transfer an unstable patient who makes an informed written request. A hospital may not delay an appropriate medical screening examination, or further examination or treatment, to inquire about the patient's payment method or insurance status. (Paragraph (c))
In addition, § 489.24 addresses: (a) Restriction of a transfer until the individual is stabilized; (b) the responsibilities of the receiving hospital; (c) termination of the provider agreement for failure to comply with EMTALA requirements; and (d) matters concerning consultation with Quality Improvement Organizations (QIOs). (Paragraphs (d) through (h), respectively)
Some EMTALA-related requirements are implemented under regulations at §§ 489.20(l), (m), (q), and (r)(1), (r)(2), and (r)(3). Those regulations deal with
In promulgating these cited regulatory sections and in enforcing the provisions of EMTALA, we are aware of the necessary balance between the hospital's and a physician's legal duty to provide examination and treatment (both under the statute and under the common law) and the practical realities of the manner in which hospitals and medical staffs are organized and operated on a day-to-day basis, as well as proper mobilization of resources within hospitals in order to comply with these legal duties. Reports of overcrowding are common in many parts of the country. Within the requirements of EMTALA, individuals should be treated at the appropriate site of care.
Hospitals and physicians have now had over 15 years of experience in organizing themselves to comply with the provisions of EMTALA. Therefore, in a proposed rule published in the
On November 10, 1999, CMS (then HCFA) and the Office of the Inspector General (OIG) published jointly in the
As discussed further in section V. of this preamble, in the May 9, 2002 proposed rule, we proposed to codify certain policies on prior authorization that are currently stated only in the Special Advisory Bulletin. We believe these changes in the regulations are needed to ensure uniform and consistent application of policy and to avoid any misunderstanding of EMTALA requirements by patients, physicians, or hospital employees.
Recently, a number of questions have been raised about the applicability of § 489.24 to specific situations. These questions arise in the context of managed care plans' requirements for prior authorization, case experiences involving elective procedures, and situations where individuals have been admitted as inpatients without being stabilized, or patients who had been stabilized later experience a deterioration in their medical condition. Some hospitals are uncertain about whether various conditions of participation (CoPs) found in 42 CFR part 482 apply to these situations or whether the EMTALA requirements included in the provider agreement regulations at § 489.24 apply, or both. Some representatives of the provider community have asked us to reexamine CMS policy on the applicability of EMTALA to physicians who are “on call” and to hospitals that own ambulances when those ambulances operate under communitywide emergency medical services (EMS) protocols.
To help promote consistent application of the regulations concerning the special responsibilities of Medicare-participating hospitals in emergency cases, in the May 9, 2002 proposed rule (67 FR 31469), we proposed changes to § 489.24 to clarify its application in these situations and at the same time address concerns about EMTALA raised by the Secretary's Advisory Committee on Regulatory Reform. These changes are discussed more fully below and include the following:
• We proposed to change the requirements relating to individuals who present with what may be emergency medical conditions at off-campus outpatient clinics and facilities that do not routinely provide emergency medical services. We believe these changes will enhance the quality and promptness of emergency care by permitting individuals to be referred to appropriately equipped emergency facilities close to such clinics, rather than being transported to the main campus emergency department, which may be located at a greater distance from the clinic.
• We proposed to clarify the extent to which EMTALA applies to inpatients and outpatients. We believe these clarifications will enhance understanding for hospitals as to what their obligations are under EMTALA, so that they more clearly understand to whom they are obligated under this provision of the statute, and whose care will be governed by the Medicare hospital CoPs.
• We proposed to clarify the circumstances in which physicians, particularly specialty physicians, must serve on hospital medical staff “on-call” lists. We expect these clarifications will help improve access to physician services for all hospital patients by permitting hospitals local flexibility to determine how best to maximize their available physician resources. We are currently aware of reports of physicians, particularly specialty physicians, severing their relationships with hospitals, especially when those physicians belong to more than one hospital medical staff. Physician attrition from these medical staffs could result in hospitals having no specialty physician service coverage for their patients. We proposed clarification of the on-call list requirements to permit hospitals to continue to attract physicians to serve on their medical staffs and thereby continue to provide services to emergency room patients.
• We proposed to clarify the responsibilities of hospital-owned ambulances so that these ambulances can be more fully integrated with citywide and local community EMS procedures for responding to medical emergencies and thus use these
In the May 9, 2002 proposed rule, we specifically solicited comments on all of these proposed changes. In response to the proposed rule, we received approximately 600 pieces of correspondence, most of which contained multiple comments. A large number of these comments were received on the last day of the comment period for the proposed rule (July 8, 2002). Because of the number and nature of the public comments we received on our proposed clarifications and our limited timeframe for developing the final acute care hospital inpatient prospective payment system regulations for publication by the statutory deadline of August 1, we decided, with one exception (application of the EMTALA provisions to provider-based entities), to address the public comments and finalize the proposed clarifications relating to implementation of EMTALA in a separate document. This final rule is that separate document.
In the next several sections of the preamble of this final rule, we summarize the public comments received on the proposed EMTALA clarifications and present our responses to those comments, including any further revisions that we are making in this final rule to the proposed regulation changes as a result of these comments.
In the May 9, 2002 proposed rule (67 FR 31471), we proposed to specify that a hospital must promptly contact the Medicare+Choice organization after a Medicare+Choice enrollee who is treated for an emergency medical condition is stabilized (proposed § 489.24(d)(6)). We received a number of public comments on this proposed provision. However, we are not addressing public comments received on this provision in this final rule but plan to address them in future policy guidance.
Some managed care plans may seek to pay hospitals for services only if the hospitals obtain approval from the plan for the services before providing the services. Requirements for this approval are frequently referred to as “prior authorization” requirements. However, EMTALA (specifically, section 1867(h) of the Act and our existing regulations at § 489.24(c)(3)) explicitly prohibit hospitals from delaying screening or stabilization services in order to inquire about the individual's method of payment or insurance status. Thus, prior authorization requirements are a matter of concern because a hospital's actions in seeking prior authorization from an insurer could result in a delay in the provision of services required by EMTALA. Our existing policy prohibits a participating hospital from seeking authorization from the individual's insurance company for screening services or services required to stabilize an emergency medical condition until after the hospital has provided the appropriate medical screening examination required by EMTALA to the individual and has initiated any further medical examination and treatment that may be required to stabilize the patient's emergency medical condition.
In the May 9, 2002 proposed rule, we solicited public comments as to whether the regulations should be revised to state that the hospital may seek other information (apart from information about payment) from the insurer about the individual, and may seek authorization for all services concurrently with providing any stabilizing treatment, as long as doing so does not delay required screening and stabilization services (67 FR 31471).
In addition, we proposed to clarify that an emergency physician is not precluded from contacting the patient's physician at any time to seek advice or information regarding the patient's medical history and needs that may be relevant to the medical screening and treatment of the patient, as long as this consultation does not inappropriately delay required screening services or stabilizing treatment.
As explained earlier, this policy was stated in a Special Advisory Bulletin published jointly by CMS (then HCFA) and the OIG. We proposed to clarify the existing language at § 489.24(c)(3) (which was proposed to be redesignated as paragraph (d)(4)) in the proposed rule to include this policy in the regulations.
Regarding the comment that authorization serves no useful purpose, we note that the regulation merely permits, but does not require, hospitals to seek concurrent authorization with the furnishing of stabilizing treatment. We do not believe it is appropriate to prohibit the practice in all cases and, therefore, are not making any revision to the proposed language, which we are adopting in this final rule, based on this comment.
We would like to clarify again that hospitals that choose to seek concurrent authorization while administering stabilizing treatment must not delay such treatment in order to obtain authorization. Even if the approving insurer or physician denies authorization for the stabilizing treatment, the hospital is
A number of commenters recommended that the regulations be revised to state that nurse practitioners and all other medical or hospital personnel involved in the individual's treatment, and not just emergency physicians, are permitted to contact the patient's physician for information and advice relevant to the patient's medical history and needs, as long as screening services or stabilizing treatment are not inappropriately delayed.
Another commenter recommended a change in the wording of proposed § 489.24(d)(4)(iii) regarding contacts between emergency physicians and individuals' personal physicians. The commenter believed that the regulations should also allow such contacts with the individual's physician to be initiated by a qualified medical person other than a physician, such as a physician assistant or nurse practitioner.
Further, we note that many insurers now provide a “window” of at least 24 hours following emergency department treatment during which authorization can be obtained. In addition, many States have enacted revisions to their insurance statutes over the past several years that explicitly contemplate the existence of the Federal EMTALA statute. As a practical matter, we believe this feature of private insurance contracts, as well as State laws governing health insurance contracts, will allow screening and stabilization to go forward without compromising the individual's rights to have care covered under his or her health plan.
Regarding a hospital's response to an individual's inquiry about financial liability for emergency services, the Special Advisory Bulletin states that any such inquiry should be answered by a staff member who is well-trained and knowledgeable and that the staff member should explain to the individual that, regardless of the individual's ability to pay, the hospital stands ready and willing to provide any necessary screening or stabilization services or both. Staff should encourage the individual to defer further discussion of financial responsibility issues, if possible, until after any necessary screening has been performed. We do not believe that this explanation needs to be included in the regulations.
In summary, we are adopting the proposed changes relating to prior authorization for necessary stabilizing treatment for emergency medical conditions under § 489.24(d)(4) as final, with the following modification:
We are revising paragraph (d)(4)(ii) to indicate that prior authorization policies apply to services furnished by a hospital, a physician, or a nonphysician practitioner.
We are revising paragraph (d)(4)(iii) to specify that an emergency physician as well as any nonphysician practitioner involved in the emergency treatment is not precluded from contacting the individual's physician at any time to seek advice regarding the individual's medical history as long as the consultation does not delay screening and stabilizing services.
We are adding a new paragraph (d)(4)(iv) to specify that hospitals may follow reasonable registration processes for individuals for whom examination or treatment is required under EMTALA, as long as the procedures do not result in a delay in screening or treatment.
Section 1867(a) of the Act and our existing regulations at § 489.24(a) provide, in part, that if any individual comes to the emergency department of a hospital and a request is made on that individual's behalf for examination or treatment of a medical condition, the hospital must provide an appropriate medical screening examination within the capability of the hospital's emergency department. Section 1867(b) of the Act and our existing regulations at § 489.24(c) provide, in part, that if the hospital determines that such an individual has an emergency medical condition, the hospital is further obligated to provide either necessary
In the May 9, 2002 proposed rule (67 FR 31472), we proposed to consolidate the EMTALA requirements for screening (currently in § 489.24(a)) and for stabilization or appropriate transfer (currently in § 489.24(c)) into a single revised paragraph (a). This consolidation was not intended to change the substance of the requirements, but only to set forth more concisely, in a single opening paragraph, the essential requirements of EMTALA. In proposed paragraph (b), we proposed to clarify the criteria for determining under what conditions a hospital is obligated by EMTALA to screen and, if necessary, stabilize or transfer an individual who comes to a hospital, presenting either at its dedicated emergency department, as we proposed to define, or elsewhere on hospital property, and requests examination or treatment, or has such a request made on his or her behalf.
In developing the proposed criteria, we recognized that sometimes individuals come to hospitals seeking examination or treatment for medical conditions that could be emergency medical conditions, but present for examination or treatment at areas of the hospital other than the emergency department. In recognition of this possibility, and for other reasons explained in the preamble to the proposed rule (including the need to assure that an individual is not denied services simply because he or she failed to actually enter the hospital's designated emergency department), we proposed to clarify under proposed § 489.24(b) that an individual can “come to the emergency department,” creating an EMTALA obligation on the part of the hospital, in one of two ways: The individual can present at a hospital's dedicated emergency department (as we proposed to define that term) and request examination or treatment for a medical condition; or the individual can present elsewhere on hospital property in an attempt to gain access to the hospital for emergency care (that is, at a location that is on hospital property but is not part of a dedicated emergency department), and request examination or treatment for what they believe to be an emergency medical condition.
Because of the need to clarify the applicability of EMTALA to a particular individual depending on where he or she presents on hospital property in order to obtain emergency care, we proposed to define “dedicated emergency department.” We proposed that “dedicated emergency department” would mean a specially equipped and staffed area of the hospital that is used a significant portion of the time for the initial evaluation and treatment of outpatients for emergency medical conditions, as defined in § 489.24(b), and is either located: (1) on the main hospital campus; or (2) off the main hospital campus and is treated by Medicare under § 413.65(b) as a department of the hospital.
The EMTALA statute was intended to apply to individuals presenting to a hospital for emergency care services. Accordingly, we believe it is irrelevant whether the dedicated emergency department is located on or off the hospital main campus, as long as the individual is presenting to “a hospital” for those services. Therefore, we proposed in our definition of “dedicated emergency department” that such a department may be located on the main hospital campus, or it may be a department of the hospital located off the main campus. (We note that the proposed definition would encompass not only what is generally thought of as a hospital's “emergency room” but would also include other departments of hospitals, such as labor and delivery departments and psychiatric units of hospitals, if these departments provide emergency psychiatric or labor and delivery services, or both, or other departments that are held out to the public as an appropriate place to come for medical services on an urgent, nonappointment basis.)
In the May 9, 2002 proposed rule, we solicited public comments on whether this proposed definition should more explicitly define what is a “dedicated emergency department” (67 FR 31472). Specifically, we sought comments on whether a “significant portion of time” should be defined more objectively; for example, in terms of some minimum number or minimum percent of patients (20, 30, 40 percent or more of all patients seen) presenting for emergency care at a particular area of the hospital in order for it to qualify as a dedicated emergency department. As an alternative, we proposed considering a qualifying criterion that is based on determining whether the facility is used “regularly” for the evaluation or treatment of emergency medical conditions, and how we could define “regularly.” We further sought comments from hospitals, physicians, and others on how hospitals currently organize themselves to react to situations in which individuals come to a hospital requesting a screening examination or medical treatment, or both.
One commenter asked us to clarify what is meant by patients who “seek emergency care” in our discussion of whether “significant portion of the time” should be defined more objectively. For instance, the commenter stated the view that while many patients present for immediate care of nonemergency problems (and these patients must be screened for an emergency under EMTALA regulations), they should not be counted in determining whether a department is considered a dedicated emergency department.
In response to the comment regarding visits for the care of nonemergency problems, we agree that such visits should not normally be counted as being for the treatment of emergency medical conditions. However, as discussed in section VIII. of this preamble, individuals who suffer an unexpected emergency medical condition after they arrive at the hospital for an outpatient visit but before they begin an outpatient encounter and individuals whose appearance or behavior would cause a prudent layperson observer to believe they need examination or treatment for an emergency medical condition would be counted toward the “one-third” standard.
Another commenter did not support the percentage-based definition of dedicated emergency department proposed because the commenter believed “it potentially could result in a patient having or not having EMTALA protections based on a fraction of a percentage point and dependent on the accounting method chosen to determine volume.” Also, the commenter believed that volumes fluctuate by days, weeks, and months, among other things. The commenter stated that fluctuating volume could potentially cause an area or department to move in and out of EMTALA coverage as the volume fluctuates.
In response to the comment concerning labor and delivery departments, we would like to clarify that CMS believes that EMTALA requires that a hospital's dedicated emergency department would not only encompass what is generally thought of as a hospital's “emergency room,” but would also include other departments of hospitals, such as labor and delivery departments and psychiatric units of hospitals, that provide emergency or labor and delivery services, or both, to individuals who may present as unscheduled ambulatory patients but are routinely admitted to be evaluated and treated. Because labor is a condition defined by statute as one in which EMTALA protections are afforded, any area of the hospital that offers such medical services to treat individuals in labor to at least one-third of the ambulatory individuals who present to the area for care, even if the hospital's practice is to admit such individuals as inpatients rather than treating them on an outpatient basis,
Similarly, another commenter stated that a “24/7” rule with routine emergency care may be more appropriate to designating a “dedicated emergency department” rather than our proposal of tracking patients and developing some minimum percentage of emergency patients. The commenter stated that if the area is not open and staffed on a continuous basis, and it is not held out to the public as such, then it should
One commenter stated that if a hospital has a department held out to the public as the place to go for a labor or psychiatric emergency medical condition, that department should fall under the definition of “dedicated emergency department” for purposes of EMTALA.
Two commenters stated that it was unclear which of the EMTALA requirements (such as the EMTALA log) would apply to the labor and delivery unit and the psychiatric unit that meet the definition of “dedicated emergency department.” In addition, these commenters asked whether EMTALA would apply to all patients who present to these locations or only to obstetrical and psychiatric patients who present under orders of their physicians at the locations.
We note that the dedicated emergency department to which an individual presents does not necessarily have to be the one to do EMTALA screening and stabilization. For example, if a man with cold symptoms or another medical condition were to seek treatment in the obstetrics and gynecology department rather than the general emergency department, this presentation would create an EMTALA obligation for the hospital, but the hospital would not be prohibited from transporting the individual to its general emergency department for screening and stabilization if that action were medically indicated.
An “emergency department” means a medical facility that, regardless of its
(a) Is a department of a hospital and is intended to routinely provide unscheduled medical services; or
(b) Meets any one of the following requirements:
(1) Is open 24 hours a day to provide unscheduled medical care, excluding, at its option, weekends or certain holidays;
(2) By its posted or advertised name, give the impression to the public that it provides medical care for urgent, immediate or emergency conditions; or
(3) Routinely provides ongoing unscheduled medical services for more than 8 consecutive hours for an individual patient.
Under subparagraph (2) of the revised definition in this final rule, we are adopting as one of three options that a “dedicated emergency department” may be any department or facility of a hospital, regardless of whether it is located on or off the main hospital campus, that is held out to the public as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment. We have not limited the definition to a hospital “department” because we do not believe it would be appropriate to exclude facilities that otherwise function as dedicated emergency departments from that definition solely because they may not fully meet the requirements for departments of providers in 42 CFR 413.65.
Second, under subparagraph (3) of the revised definition in this final rule, we are adopting the criterion that during the calendar year immediately preceding the calendar year in which a determination is being made, based on a representative sample of patient visits that occurred during that calendar year, the department or facility provided at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment. We are not using the Arizona bill 24-hour or 8-hour requirements because we believe an objective measure based on outpatient visits for the treatment of emergency medical conditions will be easier to understand and implement and better reflects the operating patterns of some emergency departments, including those at small or rural hospitals, or both, that may not offer treatment for emergency medical conditions continuously on a 24-hour, 7 days a week basis. (The hospital CoPs governing emergency services of hospitals (§ 482.55) and CAHs (§ 485.618) do not require that emergency departments be operated continuously. Under some circumstances, such as local shortages of emergency care personnel or limited demand for emergency services, hospitals and CAHs may choose to open and staff their emergency departments on less than a 24-hour, 7 days a week basis.)
Several commenters suggested that only those urgent care centers that are functioning and holding themselves out to the public as an emergency department should be considered a dedicated emergency department for purposes of EMTALA.
Although not specifically stated in a comment, an underlying issue is that urgent care centers, participating in Medicare through a hospital, and which operate as satellite facilities off the main hospital campus, would meet the current definition of a dedicated emergency department, but would generally not have the capacity on site to treat patients who had been screened and determined to have serious emergency conditions. In this situation, some might argue that it would be inappropriate for such a facility to refer a patient in an unstable condition to the main hospital campus (which could be 30 miles or more away and involve a lengthy ambulance ride) rather than to a nearby hospital that would be able to treat a patient.
Both under past and current rules, a transfer from an urgent care center to a nonaffiliated hospital is allowed under EMTALA where the facility at which the individual presented cannot stabilize the individual and the benefits of transfer exceed the risks of transfer and certain other regulatory requirements are met. Thus, our rules permit a satellite facility covered under the definition of dedicated emergency department, in this example, to screen and determine whether the case is too complex to be treated on site, that a lengthy ambulance ride to an affiliated hospital would present an unacceptable risk to the individual, and then conclude that the benefit of transfer exceeds the risk of transfer. In this case, the satellite facility could then transfer the individual to an appropriate nearby medical facility.
Another commenter supported our proposed adoption of the “prudent layperson standard” in determining whether a facility is a dedicated emergency department and stated that the prudent layperson standard is preferable to the “significant portion of the time” or “regularly” definitions or standards.
We understand the comment concerning an individual's assessment of an appropriate site of service. However, in view of the revised “dedicated emergency department” definition we are adopting in this final rule, we believe the prudent layperson standard is unnecessary for assessment of an area of the hospital as a dedicated emergency department. We believe our revised criteria for such status will permit the status of departments or facilities to be objectively determined.
Another commenter requested that we clarify the terms “specialized staff” and “specialized equipment” in the proposed “dedicated emergency department” definition. The commenter suggested that “true” emergency departments have coding equipment and coding staff who know how to assign appropriate billing codes.
Several commenters believed that we should clarify that CMS will apply EMTALA only if a site is functioning as a dedicated emergency department. Another commenter stated that the obligations of EMTALA should apply to those hospital departments or other off-site locations that provide “traditional” emergency department services.
We agree with the latter comments, but the range of comments received on the definition of a dedicated emergency department included in our proposed rule illustrates that there are varying differences in opinion as to what “functioning as a dedicated emergency department” and “traditional emergency department services” mean. Therefore, we do not believe these phrases alone are sufficient to define a dedicated emergency department. EMTALA applies not only to dedicated emergency departments but also to presentments for emergency care anywhere on hospital property.
One commenter believed that only an area of the hospital with an “Emergency” sign or a “well-accepted synonym in its title” should be impacted by the EMTALA regulations.
We agree that use of the term “emergency” or a well-recognized synonym in a facility's signage would help to identify how the facility is held out to the public and will keep this comment in mind as we develop interpretative guidelines for EMTALA surveys. However, we are not including the suggested language in the final rule because we are concerned that it could be overly prescriptive.
Similarly, another commenter recommended that we revise the definition of dedicated emergency department to state that it is a specially
One commenter suggested that our proposed definition of dedicated emergency department be revised to specify that departments of the hospital that accept walk-in or unscheduled patients for assessment are deemed to be dedicated emergency departments for the purposes of EMTALA. The commenter stated that this definition would exempt routine clinics or hospital-based physician offices that function on an appointment-only basis, administrative areas, inpatient units, and laboratory areas that provide testing but do not provide assessment or diagnosis services for patients.
Another commenter asked us to include places that are “held out to the public as an appropriate place to come for medical services on an urgent, nonappointment basis' under the definition of dedicated emergency department. This suggestion would include the labor and delivery department of a hospital, but would exclude outpatient clinics that permit “walk-in patients”, according to the commenter.
The commenter suggested that “dedicated emergency department” be defined as any area of the hospital that provides more than 10 percent of its nonscheduled patients treatment for outright emergencies.
“In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual's appearance or behavior, that the individual needs examination or treatment for an
(As proposed, this definition would require only that the prudent layperson observer believe that the individual needs examination or treatment for a
For the reasons discussed throughout section VII. of this preamble, and after full consideration of the public comments received—
We are adopting as final the proposed organizational changes to § 489.24(a) on the application of EMTALA to include both the screening and stabilization or transfer requirements. (We note that later in this preamble under section X., we make an additional change to paragraph (a) to clarify that if the hospital admits the individual as an inpatient for further treatment after screening, the hospital's obligation under EMTALA ends.)
We are adopting paragraphs (1) and (2) under the proposed definition of “come to the emergency department” as final without changes.
We are revising the proposed definition of “dedicated emergency department” at § 489.24(b), to read as follows:
“Dedicated emergency department” means any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus, that meets at least one of the following requirements:
(1) It is licensed by the State in which it is located under applicable State law as an emergency room or emergency department;
(2) It is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or
(3) During the calendar year immediately preceding the calendar year in which a determination under § 489.24 is being made, based on a representative sample of patient visits that occurred during that calendar year, it provided at least one-third of all its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.
We believe this revised definition of “dedicated emergency department” sufficiently addresses many of the suggested proposals submitted by the commenters on determining what is an emergency department for purposes of EMTALA.
We are revising the proposed definition of “hospital with an emergency department” to make it consistent with our revised definition of “dedicated emergency department.”
We sometimes receive questions whether EMTALA's requirements apply to situations in which an individual comes to a hospital's dedicated emergency department, but no request is made on the individual's behalf for emergency medical evaluation or treatment. In view of the specific language of section 1867 of the Act and the discussion in section VII. of this preamble, which addresses the definition of a hospital's dedicated emergency department, we believe that a hospital must be seen as having an EMTALA obligation with respect to any individual who comes to the dedicated emergency department, if a request is made on the individual's behalf for examination or treatment for a medical condition, whether or not the treatment requested is explicitly for an emergency condition. A request on behalf of the individual would be considered to exist if a prudent layperson observer would believe, based on the individual's appearance or behavior, that the individual needs examination or treatment for a medical condition.
This does not mean, of course, that all EMTALA screenings must be equally extensive. The statute plainly states that the objective of the appropriate medical screening examination is to determine whether or not an emergency medical condition exists. Therefore, hospitals are not obligated to provide screening services beyond those needed to determine that there is no emergency medical condition.
In general, a medical screening examination is the process required to reach, with reasonable clinical confidence, a determination about whether a medical emergency does or does not exist. We expect that in most cases in which a request is made for medical care that clearly is unlikely to involve an emergency medical condition, an individual's statement that he or she is not seeking emergency care, together with brief questioning by qualified medical personnel, would be sufficient to establish that there is no emergency condition and that the hospital's EMTALA obligation would thereby be satisfied.
To clarify our policy in this area, in the May 9, 2002 proposed rule (67 FR 31473), we proposed to redesignate paragraphs (c) through (h) of § 489.24 as paragraphs (d) through (i) (we proposed to remove existing paragraph (i)) and to add a new paragraph (c) to state that if an individual comes to a hospital's dedicated emergency department and a request is made on his or her behalf for examination or treatment for a medical condition, but the nature of the request makes it clear that the medical condition is not of an emergency nature, the hospital is required only to perform such screening as would be appropriate for any individual presenting in that manner, to determine that the individual does not have an “emergency medical condition” as defined in the regulations. (In the May 9, 2002, proposed rule, we included an Example 1 as illustrative of application of this policy (67 FR 31473).)
Section 1867(a) of the Act clearly states that a hospital with an emergency department is required to provide an appropriate medical screening examination to every individual who presents at the hospital's emergency department with a medical condition. However, this screening is only necessary to the extent it takes the hospital to determine whether the individual has an emergency medical condition. Once the individual is screened and it is determined the individual has only presented to the dedicated emergency department for a
Another commenter stated that we should provide more guidance to allow busy emergency departments to refer patients without an “emergency medical condition” to primary care or specialty care clinics, or both.
Similarly, several commenters requested that we clarify that a hospital has no obligation under EMTALA to an individual who presents at a dedicated emergency department but does not request examination or treatment for a medical condition. Specifically, one commenter believed that we should clarify that hospitals are not required under EMTALA to provide medical screening examinations to individuals who request a medical service that is not examination or treatment for a medical condition, such as preventive care services, pharmaceutical services, or medical clearances for law enforcement purposes (such as blood alcohol tests required by police).
We note that pharmaceutical services in a dedicated emergency department may be for medical conditions and are, therefore, subject to EMTALA. We also wish to emphasize that the applicable principle is that presentments to a dedicated emergency department that meet other applicable criteria for EMTALA applicability will be considered to be subject to EMTALA if there is a request by or on behalf of the individual for examination or treatment for a medical condition, or the appearance or behavior of the individual would cause a prudent layperson observer to believe that the individual needed such examination or treatment and that the individual would request that examination or treatment if he or she were able to do so. Under this general principle, we will evaluate specific presentments, including requests by law enforcement authorities for medical clearance of persons who are about to be incarcerated or for blood alcohol or other tests to be used as evidence in criminal proceedings, on a case-by-case basis.
For example, an individual being maintained on psychotropic medication may come to an emergency department and complain of experiencing suicidal or homicidal urges because he or she has exhausted his or her supply of medication. If examination of the individual verifies the existence of an emergency medical condition and a supply of the patient's normal medication is required to stabilize that condition, then EMTALA would require that the hospital provide that medication. Of course, this does not mean that hospitals are required by EMTALA to provide medication to patients who do not have an emergency medical condition, simply because the patient is unable to pay or does not wish to purchase the medication from a retail pharmacy. We will address these types of issues in our interpretative guidelines.
Similarly, another commenter stated that some hospitals, particularly rural ones, have found that it is most cost-effective for the hospital if it was configured to have one hospital entrance for patients who present for emergency care and for patients who do not present for emergency care. The commenter requested clarification on whether an EMTALA screening would be required for both types of patients who walk through that one entrance.
One commenter described a situation where a hospital operates ambulatory care centers and other facilities (such as primary care clinics) in tandem with the hospital's dedicated emergency department. The commenter believed the nondedicated emergency department of the hospital should be explicitly excepted from the definition of “dedicated emergency department” to address this “tandem” scenario.
Another commenter asked us to clarify whether vital signs must be obtained in every medical screening examination upon presentment to a hospital's dedicated emergency department.
“In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this title) comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1)) exists.”
Triaging is not equivalent to a medical screening examination. Triaging merely determines the “order” in which patients will be seen, not the presence or absence of an emergency medical condition. If the medical screening examination is appropriate and does not reveal an emergency medical condition, the hospital has no further obligation under § 489.24.
The decision to take vital signs may be required by the qualified medical professional or the hospital's emergency department's policies and procedures, or both. Vital signs are indicators of a patient's level of wellness and are valuable parameters to assist health professionals in making medical decisions concerning a patient's health needs. The patient's medical condition and the discretion of the practitioner will determine the need for monitoring of vital signs.
We do not believe the taking of a patient's vital signs is required for every presentment to a hospital's dedicated emergency department. As we have stated above, we expect that, in most cases in which a request is made for medical care that clearly is unlikely to involve an emergency medical condition, an individual's statement that he or she is not seeking emergency care, together with brief questioning by qualified medical personnel, would be sufficient to establish that there is no emergency medical condition and the hospital's EMTALA obligation would thereby be satisfied.
We agree with the commenter that the extent of the necessary examination is generally within the judgment and discretion of the qualified medical personnel performing the examination. However, we note that the extent and quality of the screening by the qualified medical personnel are subject to review (by QIOs and State surveyors, for example), in the case of a complaint filed in accordance with section 1867 of the Act.
Another commenter stated that the real issue is when a hospital is required to perform a medical screening examination and when it is
However, we do believe that it would not be an
We are adopting, as final, the proposed provisions under § 489.24(c).
Routinely, individuals come to hospitals as outpatients for many nonemergency medical purposes. If such an individual initially presents at an on-campus area of the hospital other than a dedicated emergency department, we would expect that the individual typically would not be seeking emergency care. Under most of these circumstances, EMTALA would therefore not apply (this concept is further discussed in section IX.B. of this preamble). However, questions have arisen as to whether a hospital would incur an EMTALA obligation with respect to an individual presenting at that area (that is, an on-campus area of the hospital other than a dedicated emergency department) who requests examination or treatment for what is believed to be an emergency medical condition, or had such a request made on his or her behalf.
In the May 9, 2002 proposed rule (67 FR 31473 and 31506), we proposed to specify in the regulations (§ 489.24(b), definition of “come to the emergency department”) that, for an individual who presents on hospital property other than the dedicated emergency department and requests examination or treatment for what may be an emergency medical condition, a request would be considered to exist if the individual requests examination or treatment for what the individual believes to be an emergency medical condition. We further explained that if there is no actual request, for example, if the individual is unaccompanied and is physically incapable of making a request, the request from the individual would be considered to exist if a prudent layperson observer would believe, based upon the individual's appearance or behavior, that the individual needs treatment for an emergency medical condition. We stated that the proposed policy was appropriate because section 1867 protections should not be denied to those individuals whose need for emergency services arises upon arrival on hospital property at the hospital's main campus, but before they have presented to the dedicated emergency department.
Under the proposed policies, a request for examination or treatment by an individual presenting for what is believed to be an emergency medical condition at an on-campus area of the hospital other than the dedicated emergency department would not have to be expressed verbally in all cases. In some cases, the request may be inferred from what a prudent layperson observer would conclude from an individual's appearance or behavior. While there may be a request (either through the individual or a prudent layperson), thereby triggering an EMTALA obligation on the part of the hospital, this policy does not mean that the hospital must maintain emergency medical screening or treatment capabilities in each department or at each door of the hospital, nor anywhere else on hospital property, other than the dedicated emergency department.
Our proposal, and the considerations on which it is based, are further discussed in the preamble to the May 9, 2000 proposed rule (67 FR 31473). We also specifically solicited comments from hospitals and physicians on examples of ways in which hospitals presently react to situations in which individuals request emergency care in areas of the hospital other than the hospital's emergency department.
In the May 9, 2002 proposed rule, we also proposed that EMTALA would not apply to an individual who experiences what may be an emergency medical condition if the individual is an outpatient (as that term is defined in 42 CFR 410.2). We explained that we would consider such an individual to be an outpatient if he or she has begun an encounter (as that term is defined in 42 CFR 410.2) with a health professional at the outpatient department. Because such individuals are patients of the hospital already, we believe it is inappropriate that they be considered to have “come to the hospital” for purposes of EMTALA. However, we note that such an outpatient under our proposal who experiences what may be an emergency medical condition after the start of an encounter with a health professional would have all protections afforded to patients of a hospital under the Medicare hospital CoPs (as discussed in section XIV. of the preamble). Hospitals that fail to provide treatment to these patients could face termination of their Medicare provider agreements for a violation of the CoPs. In addition, as patients of a health care provider, these individuals are accorded protections under State statutes or common law (for example, State malpractice law and patient abandonment torts) as well as under general rules of ethics governing the medical profession. Our proposal, and the considerations on which it is based, are further discussed in the preamble to the May 9, 2002 proposed rule (67 FR 31473 through 31474).
In the proposed rule, we also proposed to retitle the definition of “property” at § 489.24(b) to “hospital property” and relocate it as a separate definition. In addition, we proposed to clarify which areas and facilities are not considered hospital property.
“* * * EMTALA is triggered in on-campus areas of the hospital other than a dedicated emergency department where, in an attempt to gain access to the hospital for emergency care, an individual comes to a hospital and requests an examination or treatment for a medical condition that may be an emergency.” (Emphasis added.) The commenter further cited the preamble at 67 FR 31474:
“We are proposing that EMTALA would not apply to * * * an individual who * * * experiences what may be an emergency medical condition
The commenter then compared this language in the preamble to the proposed regulatory text at § 489.24(b) that would hold a hospital accountable under EMTALA when an individual has presented on hospital property other than a dedicated emergency department, “and requests examination or treatment for what may be an emergency medical condition, or has such a request made on his or her behalf. * * *” The commenter was concerned that neither of the preamble's purported tests for EMTALA's applicability outside of the dedicated emergency department that are quoted above is referenced in the proposed regulatory text: neither the test of whether the individual came to the hospital in an attempt to gain access to the hospital for emergency care, nor the objective test of whether the patient has begun an encounter with a health professional at the outpatient department. This commenter believed that the regulatory text should be revised to clearly state that EMTALA is not applicable to outpatients who have initiated an encounter with a health professional in a hospital outpatient department other than a dedicated emergency department.
Another commenter suggested that we substitute the term “member of the public” for “outpatients” in the definition of dedicated emergency department (“a dedicated emergency department would mean a specially equipped and staffed area of the hospital that is used a significant portion of the time for the initial evaluation and treatment of
Other commenters requested that we clarify that EMTALA would not apply when individuals arrive on the orders of their physicians, such as when a pregnant woman or a psychiatric patient arrives upon a physician's order either for testing or because he or she is in need of immediate medical care. In addition, some commenters believed that CMS should clearly state that only the Medicare hospital CoPs and not EMTALA would apply to individuals with scheduled outpatient appointments or procedures.
Another commenter disagreed with the CMS statement in the preamble to the proposed rule that EMTALA does not apply to “established patients” who need emergency care while on hospital property. The commenter stated that it may be impossible to distinguish such a patient from anyone else experiencing a similar emergency also on hospital property, and was concerned that the concept of excluding an established patient from EMTALA will raise many definitional and logistical issues.
One commenter believed that we intended for EMTALA not to apply in situations where the individual has arrived for an appointment, even if they had not yet been assisted. The commenter urged clarification on this issue.
One commenter stated that there may be occasions where individuals present to the hospital for outpatient services where
We note that individuals who are already patients of a hospital and who experience emergency medical conditions are protected by existing Medicare hospital CoPs. We discuss these CoPs in greater detail in section XIII. of this final rule. Hospitals that fail to provide treatment to these patients could face termination of their Medicare provider agreements for a violation of the CoPs. In the January 24, 2003
In response to the comment concerning the individual who comes to the hospital for purposes of an annual mammogram or health fair, with or without an order or referral by a physician, that individual is not presenting to the hospital with a particular emergency medical condition. Therefore, EMTALA would not apply. We believe this is consistent with our policy stated elsewhere in this preamble.
Of course, where EMTALA applies to a particular individual who has presented to the hospital for examination or treatment for an emergency medical condition, EMTALA's application does not end just because the individual has begun an outpatient encounter;
In response to the commenter's concern that we incorporate the language regarding coming to the hospital in order “to gain access to the hospital for emergency care” into the regulation text, while in most emergency cases individuals will come to a hospital in order to gain access to emergency care at the hospital, not all emergency patients start out that way. Some individuals may come to the on-campus hospital property for reasons other than to seek medical services for themselves (examples would include a hospital employee, or a visitor of the hospital). Such individuals would not be protected by the hospital CoPs if they happen to experience what may be an emergency medical condition while on hospital property, since they are not hospital patients. Therefore, we are clarifying here that we consider such individuals to have “come to the emergency department.” Under section 1867(a) of the Act, such individuals are protected by EMTALA and hospitals must provide them with screening and necessary stabilizing treatment.
To address the comment concerning the substitution of the term “outpatients” in the proposed definition of “dedicated emergency department”, we mention the comment in this section of the preamble of this final rule because, as the commenter pointed out, it would appear to be inconsistent with our policy in our proposed regulations text at § 489.24 that EMTALA would not apply to any
In this final rule, in response to comments, we are revising our definition of “dedicated emergency department” at § 489.24(b) to specify that such a department is a unit in the hospital that meets at least one of three criteria, one of which is that it is any department or facility of the hospital that provides for the examination or treatment of emergency medical conditions for at least one-third of all of its outpatient visits, based on a representative sample of patient visits for the calendar year immediately preceding the calendar year in which a determination is being made. This revised language avoids using the term “individuals” or “member of the public” and would sufficiently encompass any person, including hospital staff who may become ill, who comes to a hospital's emergency department for medical care.
In addition, we are revising the proposed definition of “patient” under § 489.24(b) to indicate that EMTALA does not apply to an individual who has begun to receive outpatient services as part of an encounter, as defined in § 410.2, other than an encounter that the hospital is obligated by EMTALA to provide.
In addition, we do not believe treatment of an emergency patient would involve having nonclinical hospital staff making determinations about an individual's medical condition; rather, we envision that, as stated above, hospitals would set up procedures to provide for emergency care to individuals who present in hospital departments other than dedicated emergency department locations on the hospital campus.
Many other commenters supported our proposed prudent layperson standard; they believed that the standard would ensure that the obvious emergency situation would be addressed, even if the individual were unable to verbalize the request.
Several other commenters requested that we substitute the term “obvious implied request” or “implied request,” instead of relying on the perceptions of a prudent layperson for individuals who are unable to articulate their needs.
Many commenters believed that hospitals must be on notice of an individual's presentment in order for EMTALA to be triggered to that individual. One commenter stated: “Because an EMTALA obligation is triggered by a patient-generated request, hospital personnel must be made aware of the individual's presence and observe the appearance or behavior or both of that person in order to respond appropriately. Additionally, all hospitals need policies that describe steps to be taken to assure that a person in clear need, for example, a visitor who collapses in the cafeteria, receives medical attention.”
Several commenters requested that the final rule make clear that EMTALA does not apply to an individual presenting on on-campus hospital property other than a dedicated emergency department unless emergency services are requested.
We also agree with the commenters that EMTALA does not apply elsewhere on on-campus hospital property other than a dedicated emergency department unless
However, to address the commenters who requested an “obvious implied request standard” instead of the “prudent layperson standard”, we believe the prudent layperson standard is necessary for both presentments inside the dedicated emergency department and elsewhere on hospital property. We are concerned about the circumstance where hospital staff observe the appearance or behavior of an individual who clearly has an emergency medical condition, but do nothing to provide treatment for that individual.
In addition, the term “prudent layperson” is consistent with the Medicare and Medicaid programs, in general. We believe it is appropriate and realistic to utilize this objective standard in the EMTALA context as well, because it reflects a standard for judging whether the hospital should have acted—it does not shift control of events to any particular individual layperson.
Another commenter requested that CMS limit application of the prudent layperson language to circumstances where the need for emergency services is clear and the individual cannot make the request and there is no one to make the request on behalf of the individual.
Another commenter found it confusing to have a separate definition of dedicated emergency department. The commenter stated that it is already well-established and accepted that any individual who arrives anywhere on hospital property, whether it is the emergency department or a sidewalk within 250 yards of the main building and requests care for a emergency medical condition triggers EMTALA obligations for the hospital. Therefore, the commenter added, it is immaterial whether or not an individual presents to a “dedicated emergency department,” since arrival anywhere on a hospital campus automatically triggers EMTALA.
Thus, in clarifying our policy, it is necessary to address
We believe that, in making our clarification of “dedicated emergency department,” we are assisting in clarifying a hospital's responsibilities under EMTALA to screen and provide necessary stabilizing treatment to an individual who comes to a hospital, presenting either at its dedicated emergency department or elsewhere on hospital property; that is, we are clarifying at what point EMTALA is
In summary, in consideration of the comments discussed under this section, in this final rule, we are—
• Adopting as final the proposed definition of hospital property under § 489.24(b) with one clarifying editorial change concerning the language in the proposed definition about excluding other areas or structures that are located within 250 yards of the hospital's main building.” We are removing the proposed phrase “located within 250 yards of the hospital's main building” because the phrase is duplicative of the language in the definition of “us” at § 413.65(b). “Campus” includes the 250 yards concept in its definition; therefore, by referencing § 413.65(b) in the definition of “hospital property” under EMTALA, we are already including the concept of 250 yards.
• Adopting as final the proposed definition of patient under § 489.24(b), with a modification to reflect the nonapplicability of EMTALA to an individual who has begun to receive outpatient services at an encounter at the hospital other than an encounter that the hospital is obligated by EMTALA to provide.
While most issues regarding EMTALA arise in connection with ambulatory patients, questions have occasionally been raised about whether EMTALA applies to inpatients. In late 1998, the United States Supreme Court considered a case (
As we noted in the proposed rule, once a hospital has incurred an EMTALA obligation with respect to an individual, that obligation continues while the individual remains at the hospital, so that any transfer to another medical facility or discharge of the individual must be in compliance with the rules restricting transfer until the individual is stabilized under existing § 489.24(d). In these cases, we stated that the hospital continues to be obligated under section 1867 of the Act, irrespective of the inpatient admission, and that an individual's emergency medical condition will be considered to have been stabilized only when the criteria in § 489.24(b) are met. That is, the individual's condition must be such that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during a transfer of the individual from the facility or, if the patient is a pregnant woman who is having contractions, that the woman has delivered the child and the placenta. We believed that such a policy would provide protections under the statute to those patient populations that are most vulnerable—individuals who are experiencing emergency medical conditions (including women in labor who are admitted to the hospital).
In addition, we proposed to clarify in the proposed rule that an individual who goes in and out of apparent stability with sufficient rapidity or frequency would not be considered “stabilized” within the meaning of § 489.24; transient stability of such an individual does not relieve the hospital
Based on an analysis of the statute (sections 1867(b)(1)(A), (c)(2), and (e)(1) of the Act) and the legislative history (131 Cong. Rec. 28.587 and 28.588 (1985) and H.R. Rept. No. 241 (I)(1985), reprinted in 1986 U.S.C.C.A.N. 579, 605.), we explained why we believed that EMTALA continued to apply to admitted emergency patients until they have been stabilized or appropriately transferred.
For a detailed discussion of the proposed policy on the applicability of EMTALA to admitted patients with unstabilized emergency medical conditions, see the preamble to the May 9, 2002 proposed rule at 67 FR 31475.
In addition, except for the limited circumstances described above, we proposed to clarify that EMTALA does not apply to nonemergency hospital inpatients. Most hospital admissions do not consist of emergency cases. In most cases, an individual who comes to the hospital and requests admission does so to obtain elective (nonemergency) diagnosis or treatment for a medical condition. We noted that once a hospital admits an individual as a patient, that hospital has a variety of other legal, licensing, and professional obligations with respect to the continued proper care and treatment of such patients.
We proposed to redesignate paragraph (c) of § 489.24 as paragraph (d), and include stabilization requirements under a new proposed § 489.2(d)(2). (Proposed redesignated paragraph (d) was proposed to be revised further as explained in section V.K.9.b. of the preamble of the May 9, 2002 proposed rule (67 FR 31456).) In addition, we proposed to include the requirements for nonapplicability of EMTALA to nonemergency hospital inpatients under proposed redesignated § 489.24(d)(2).
However, many commenters expressed the view that EMTALA should not apply to any inpatient, even one who was admitted through the dedicated emergency department and for whom the hospital had incurred an EMTALA obligation to stabilize. Several commenters noted that hospitals have extensive CoPs responsibilities with respect to inpatients or State tort law obligations, and argued that the hospital's assumption of responsibility for the individual's care on an inpatient basis should be deemed to meet the hospital's obligation under EMTALA. Many commenters recommended that the regulations be revised to state that a hospital's EMTALA obligation may be met by admitting an individual as an inpatient.
Two commenters stated that CMS has “no evidence there is a current problem” for the dumping of inpatients with emergency medical conditions. Therefore, the commenters believed EMTALA applicability should end upon inpatient admission.
One commenter (a group of neurosurgeons and neurologists) believed that EMTALA was not intended to apply to an inpatient admitted through the dedicated emergency department. Several commenters cited the recent ruling by the Court of Appeals for the Ninth Circuit in
In particular, the courts found that the statute requires that stabilizing care must be provided in a way that avoids material deterioration of an individual's medical condition if the individual is being transferred from the facility. The courts gave great weight to the fact that hospitals have a discrete obligation to stabilize the condition of an individual when moving that individual out of the hospital to either another facility or to his or her home as part of the discharge process. Thus, should a hospital determine that it would be better to admit the individual as an inpatient, such a decision would not result in either a transfer or a discharge, and, consequently, the hospital would not have an obligation to stabilize under EMTALA. The courts have generally acknowledged that this limitation on the scope of the stabilization requirement does not protect hospitals from challenges to the decisions they make about patient care; only that redress may lie outside EMTALA. For example, a hospital may face liability for negligent behavior that results in harm to persons it treat after they are admitted as inpatients, but such potential liability would flow from medical malpractice principles, not from the hospital's obligations under EMTALA.
As many courts have ruled, EMTALA does not purport to establish a medical malpractice cause of action nor establish a national standard of care. In our view, apart from the possible malpractice implications redressable outside the statute, hospitals that fail to meet their obligations to provide quality care to inpatients may also face consequences affecting their Medicare certification under the applicable CoPs at 42 CFR Part 482. We discuss these CoPs and the process by which we enforce compliance with these CoPs in greater detail in section XIII. of this preamble. In a January 24, 2003 final rule (68 FR 3435), we explained that if our surveyors discover noncompliance with the hospital CoPs, “the hospital will be scheduled for termination from the Medicare and Medicaid programs.” Thus, for hospital CoPs violations, as well as for EMTALA violations (compliance with which is a Medicare participation requirement), hospitals face the extreme sanction of termination from the Medicare program.
As a result of these court cases, and because we believe that existing hospital CoPs provide adequate, and in some cases, superior protection to patients, we are interpreting hospital
We believe that, as the agency charged with enforcement of EMTALA, it is appropriate to pay deference to the numerous Federal courts of appeal that have decided upon this issue. Although the decisions of the courts in these EMTALA private right of action cases are not necessarily binding for our enforcement purposes, we do believe that consistent judicial interpretation of this matter, when combined with the many comments received on this matter, dictate the policy that we articulate in this final rule.
Moreover, given the numerous hospital CoPs that protect inpatients, as well as patients' rights under State law, we believe that patients are sufficiently protected under our policy as we have articulated it in this final rule. However, a hospital cannot escape liability under EMTALA by ostensibly “admitting” a patient, with no intention of treating the patient, and then inappropriately transferring or discharging the patient without having met the stabilization requirement. If it is discovered upon investigation of a specific situation that a hospital did not admit an individual in good faith with the intention of providing treatment (that is, the hospital used the inpatient admission as a means to avoid EMTALA requirements), then liability under EMTALA may attach.
“If a hospital admits an individual with an unstable emergency medical condition for stabilizing treatment, as an inpatient, stabilizes that individual's emergency medical condition, and this period of stability is documented by relevant clinical data in the individual's medical record, the hospital has satisfied its special responsibilities under this section with respect to that individual. If the patient is stable for a transfer of the type usually undertaken with respect to patients having the same medical conditions, the hospital's special responsibilities under this section are satisfied * * *.”
The commenter believed the proposed standard, “stable for a transfer of the type usually undertaken with respect to patients having the same medical conditions,” could undermine both patient safety and the EMTALA statute if hospitals only document that a patient is as stable as similarly situated patients for an appropriate transfer. The commenter requested that the final rule specify that the hospital may satisfy its EMTALA obligations to an admitted patient only by documenting that it has provided stabilizing treatment to the point that the emergency medical condition has been resolved.
Another commenter recommended that we clarify that a hospital inpatient may be stable for transfer or stable for discharge for purposes of EMTALA.
One commenter stated that because of possible confusion on the part of the emergency department staff of what constitutes “stable” under the EMTALA regulations in the inpatient setting, many patients may be identified as stable who are technically medically unstable. The commenter recommended that CMS clarify who the reasonable parties are, to determine whether a patient is stable and can be transported to provide the best outcome for that patient.
Another commenter requested that CMS clarify that once an inpatient has been stabilized for discharge, EMTALA no longer applies, even if the patient requires followup care. The commenter requested guidance on whether, for example, the fact that a patient who is being discharged will eventually need to receive a cast or risk further injury influences the point of stabilization for EMTALA purposes.
One commenter recommended that CMS clarify the EMTALA followup care requirements, for “stable for discharge,” until the individual's emergency medical condition is resolved. The commenter suggested that the hospital merely be required to present the individual with a plan for followup care, listing, for example, names of physicians who are qualified to provide the individual's care or who are on the individual's health care plan.
In
Because the court in
Another commenter asked us to clarify whether EMTALA would apply to the stabilization of individuals with emergency medical conditions while awaiting admission in the dedicated emergency department or to an unstable patient who is being “held” or “boarded” in the operating room or angiography suite prior to movement to an inpatient bed.
In response to the issue about the definition of “inpatient” for purposes of EMTALA, we are revising our proposed definition of “patient” under § 489.24(b) that specified that an inpatient is one who is “receiving inpatient hospital services as defined in § 409.10(b).” Upon further consideration, we believe it would be more helpful to adopt the definition of “inpatient” from Section 210 of the Medicare Hospital Manual (CMS Publication Number 10 (1989)), which is a well-utilized definition in the Medicare program for purposes of Medicare payment. Under that section, an “inpatient is a person who has been admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services. Generally a person is considered an inpatient if formally admitted as an inpatient with the expectation that he [or she] will remain at least overnight and occupy a bed even though it later develops that he [or she] can be discharged or transferred to another hospital and does not actually use a hospital bed overnight.” We believe adopting such a definition for EMTALA purposes would provide further guidance in determining who is an inpatient.
To respond specifically to the commenter, individuals who are “boarded” and admitted in the dedicated emergency department would be determined to be inpatients for purposes of EMTALA if, generally, they have been admitted by the hospital with the expectation that they will remain at least overnight and occupy beds in the hospital. We believe such an expectation would be documented based on the information in the individual's medical record.
In this final rule, we are adopting as final the proposed definition of “patient” under § 489.24(b) with modifications. We are further clarifying what “outpatients” are not subject to the EMTALA obligations.
We also are providing that a hospital's obligations under EMTALA end once an individual is admitted for inpatient care. As explained above, we believe
We also are adding language to adopt our established definition of “inpatient” in section 210 of the Medicare Hospital Manual (CMS Publication No. 10) who are also not subject to the EMTALA obligations. In addition, we are adopting as final the proposed § 489.24(d)(2) with modifications. We are clarifying that a hospital is required to provide care to its inpatients in accordance with the Medicare hospital CoPs.
On April 7, 2000, we published a final rule specifying the criteria that must be met for a determination regarding provider-based status (65 FR 18504). The regulations in that final rule were subsequently revised to incorporate changes mandated by section 404 of Public Law 106-554 (66 FR 59856, November 30, 2001). However, those revisions did not substantively affect hospitals' EMTALA obligations with respect to off-campus departments.
In the April 7, 2000 final rule (65 FR 18504), we clarified the applicability of EMTALA to hospital departments not located on the main provider campus. At that time, we revised § 489.24 to include a new paragraph (i) to specify the antidumping obligations of hospitals with respect to individuals who come to off-campus hospital departments for the examination or treatment of a potential emergency medical condition. As explained in the preamble to the April 7, 2000 final rule, we made this change because we believed it was consistent with the intent of section 1867 of the Act to protect individuals who present on hospital property (including off-campus hospital property) for emergency medical treatment. Since publication of the April 7, 2000 final rule, it has become clear that many hospitals and physicians continue to have significant concerns with our policy on the applicability of EMTALA to these off-campus locations.
After further consideration, in the May 9, 2002 proposed rule (67 FR 31476), we proposed to clarify the scope of EMTALA's applicability in this scenario to those off-campus departments that are treated by Medicare under § 413.65(b) to be departments of the hospital, and that are equipped and staffed areas that are used a significant portion of the time for the initial evaluation and treatment of outpatients for emergency medical conditions. That is, we proposed to narrow the applicability of EMTALA to only those off-campus departments that are “dedicated emergency departments” as defined in proposed revised § 489.24(b).
As proposed, this definition would include such departments, whether or not the words “emergency room” or “emergency department” were used by the hospital to identify the departments. The definition would also be interpreted to encompass those off-campus hospital departments that would be perceived by an individual as appropriate places to go for emergency care. Therefore, we proposed to revise the definition of “Hospital with an emergency department” at § 489.24(b) to account for these off-campus dedicated emergency departments and also to amend the definition of “Comes to the emergency department” at § 489.24(b) to include this same language. We believe these proposed changes would enhance the quality of emergency care by facilitating the prompt delivery of emergency care in those cases, thus permitting individuals to be referred to nearby facilities with the capacity to offer appropriate emergency care.
In general, we expect that off-campus departments that meet the proposed definitions stated above would in practice be functioning as “off-campus emergency departments.” Therefore, we believe it is reasonable to expect the hospital to assume, with respect to these off-campus departments, all EMTALA obligations that the hospital must assume with respect to the main hospital campus emergency department. For instance, the screening and stabilization or transfer requirements described in section V.K.1. of the preamble of the May 9, 2002 proposed rule (“Background”) would extend to the off-campus emergency departments, as well as to any such departments on the main hospital campus.
In conjunction with this proposed change in the extent of EMTALA applicability with respect to off-campus facilities, we also proposed to delete all of existing § 489.24(i), which, as noted above, was established in the April 7, 2000 final rule. We proposed to delete this paragraph in its entirety because its primary purpose is to describe a hospital's EMTALA obligations with respect to patients presenting to off-campus departments that do not routinely provide emergency care. Under the proposals outlined above, however, a hospital would have no EMTALA obligation with respect to individuals presenting to such departments. Therefore, it would no longer be necessary to impose the requirements in existing § 489.24(i). Even though off-campus provider-based departments that do not routinely offer services for emergency medical conditions would not be subject to EMTALA, some individuals may occasionally come to them to seek emergency care. Under such circumstances, we believe it would be appropriate for the department to call an emergency medical service (EMS) if it is incapable of treating the patient, and to furnish whatever assistance it can to the individual while awaiting the arrival of EMS personnel. Consistent with the hospital's obligation to the community and similar to the Medicare hospital CoP under § 482.12(f)(2) that apply to hospitals that do not provide emergency services, we would expect the hospital to have appropriate protocols in place for dealing with individuals who come to off-campus nonemergency facilities to seek emergency care.
To clarify a hospital's responsibility in this regard, in the May 9, 2002 proposed rule, we proposed to revise § 482.12(f) by adding a new paragraph (3) to state that if emergency services are provided at the hospital but are not provided at one or more off-campus departments of the hospital, the governing body of the hospital must assure that the medical staff of the hospital has written policies and procedures in effect with respect to the off-campus department(s) for appraisal of emergencies and referral when appropriate. (We note that, in a separate document (62 FR 66758, December 16, 1997), we proposed to relocate the existing § 482.12(f) requirement to a new section of Part 482. The change to § 482.12(f) in this final rule will be taken into account in finalizing the December 16, 1997 proposal.) However, the hospital would not incur an EMTALA obligation with respect to the individual.
In summary, we proposed in existing § 489.24(b) to revise the definitions of “comes to the emergency department” and “hospital with an emergency
Other commenters stated that EMTALA should not apply to any off-campus department unless CMS provides a narrower definition of “dedicated emergency department” and clarifies whether or under what circumstances EMTALA will apply to urgent care facilities. However, the commenters did not provide any indication of why the definition is believed to be too broad or how they would recommend changing it.
Several commenters stated that EMTALA should not apply to an off-campus urgent care center unless the center is functioning and holding itself out to the public as an emergency department.
Regarding the suggestion that a hospital's orthopedic department might be determined to be a dedicated emergency department because an individual person would look to it for emergency orthopedic care, as we have noted above, the definition of “dedicated emergency department” in section VIII. of this preamble does not include “prudent layperson” standard. Rather, with this final rule, “dedicated emergency department” means any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus, that (1) is licensed by the State in which it is located under applicable State law as an emergency room or emergency department; (2) is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or (3) during the calendar year immediately preceding the calendar year in which a determination under § 489.24 is being made, based on a representative sample of patient visits that occurred during that calendar year, provides at least one-third of all of its outpatient visits for the examination or treatment of emergency medical conditions. If the orthopedic department does not meet any of these three criteria for dedicated emergency department status, it is not a dedicated emergency department for EMTALA purposes, regardless of what the individual may believe as to the status of the department.
We are adopting, as final with modifications as discussed in earlier sections of this preamble, the proposed revisions of the definition of “come to the emergency department,” “hospital with an emergency department,” and “dedicated emergency department” at § 489.24(b), which encompass off-campus hospital departments that would be perceived by individuals as appropriate places to go for emergency care. We also are adopting as final the related proposed deletion of the provisions under § 489.24(i) and the conforming change to § 413.65(g)(1). In addition, we are adopting, as final, the proposed new § 482.12(f)(3) which provides that the governing body of a hospital must assure that the medical staff has written policies and procedures in effect with respect to off-campus departments for appraisal of emergencies and referrals, when appropriate.
At existing § 413.65(g)(1), we state, in part, that if any individual comes to any hospital-based entity (including an RHC) located on the main hospital campus, and a request is made on the individual's behalf for examination or treatment of a medical condition, the entity must comply with the antidumping rules at § 489.24. Since provider-based entities, as defined in § 413.65(b), are not under the certification and provider number of the main provider hospital, this language, read literally, would appear to impose EMTALA obligations on providers other than hospitals, a result that would not be consistent with section 1867, which restricts EMTALA applicability to hospitals.
To avoid confusion on this point and to prevent any inadvertent extension of EMTALA requirements outside the hospital setting, in the May 9, 2002 proposed rule (67 FR 31477), we proposed to clarify that EMTALA applies in this scenario to only those
In addition, we proposed in § 489.24(b) to revise the definition of “Comes to the emergency department” to include an individual who presents on hospital property, in which “hospital property” is, in part, defined as “the entire main hospital campus as defined at § 413.65(b) of this chapter, including the parking lot, sidewalk, and driveway, but excluding other areas or structures that may be located within 250 yards of the hospital's main building but are not part of the hospital, such as physician offices, RHCs, SNFs, or other entities that participate separately in Medicare, or restaurants, shops, or other nonmedical facilities.” We specifically sought comments on this proposed revised definition. Generally, the proposed language would clarify that EMTALA does not apply to provider-based entities, whether or not they are located on a hospital campus. This language is also consistent with our policy as stated in questions and answers published on the CMS Web site:
We stated that if this proposed change limiting EMTALA applicability to only those on-campus departments of the hospital became final, we believe that if an individual comes to an on-campus provider-based entity or other area or structure on the campus not applicable under the new policy and presents for emergency care, it would be appropriate for the entity to call the emergency medical service if it is incapable of treating the patient, and to furnish whatever assistance it can to the individual while awaiting the arrival of emergency medical service personnel. However, the hospital on whose campus the entity is located would not incur an EMTALA obligation with respect to the individual.
In the May 9, 2002 proposed rule, we solicited comments from providers and other interested parties on the proper or best way to organize hospital resources to react to situations on campus where an individual requires immediate medical attention.
We proposed in § 489.24(b) to revise the definition of “Comes to emergency department” (specifically, under proposed new paragraph (1)) and make conforming changes at § 413.65(g)(1).
In the August 1, 2002 final rule issued following the May 9, 2002 proposed rule (67 FR 50090), we only adopted as final the deletion of the second sentence of the existing § 413.65(g)(1) that address the nonapplicability of EMTALA to provider-based entities. We did not adopt other proposed clarifications concerning application of EMTALA to provider-based departments, on or off the campus, or any other proposals concerning EMTALA.
We are adopting, as final with minor editorial changes as explained earlier in this preamble, the proposed revision of “come to the emergency department” and “hospital property” in which hospital property is, in part, defined as “the entire main hospital campus as defined at § 413.65(b) of this chapter, including the parking lot, sidewalk, and driveway, but excluding other areas or structures of the hospital's main building that are not part of the hospital, such as physician offices, RHCs, SNFs, or other entities that participate separately in Medicare, or restaurants, shops, or other nonmedical facilities.” This will clarify that on-campus provider-based entities would not be subject to EMTALA.
We are also adopting as final without modification the proposed clarifying change to § 413.65(g)(l).
We have frequently received inquiries concerning the statutory requirement that hospitals maintain an “on-call” list of physicians to provide services to patients who seek care in hospital emergency departments. We believe there are a number of misconceptions in the provider industry concerning these on-call requirements. Therefore, as in the May 9, 2002 proposed rule (67 FR 31478), we are including a section that clarifies what kinds of obligations physicians and hospitals have to provide on-call coverage under EMTALA.
Section 1866(a)(1)(I)(iii) of the Act states, as a requirement for participation in the Medicare program, that hospitals must maintain a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition. If a physician on the list is called by a hospital to provide emergency screening or treatment and either fails or refuses to appear within a reasonable period of time, the hospital and that physician may be in violation of EMTALA as provided for under section 1867(d)(1)(C) of the Act.
The CMS State Operations Manual (SOM) further clarifies a hospital's responsibility for the on-call physician. The SOM (Appendix V, page V-15, Tag A404) states:
• Each hospital has the discretion to maintain the on-call list in a manner to best meet the needs of its patients.
• Physicians, including specialists and subspecialists (for example, neurologists), are not required to be on call at all times. The hospital must have policies and procedures to be followed when a particular specialty is not available or the on-call physician cannot respond because of situations beyond his or her control.
Thus, hospitals are required to maintain a list of physicians on call at any one time, and physicians or hospitals, or both, may be responsible under the EMTALA statute to provide emergency care if a physician who is on the on-call list fails to or refuses to appear within a reasonable period of time. However, Medicare does not set requirements on how frequently a hospital's staff of on-call physicians are expected to be available to provide on-call coverage; that is a determination to be made between the hospital and the physicians on its on-call roster. We are aware that practice demands in treating other patients, conferences, vacations,
We understand that some hospitals exempt senior medical staff physicians from being on call. This exemption is typically written into the hospital's medical staff bylaws or the hospital's rules and regulations, and recognizes a physician's active years of service (for example, 20 or more years) or age (for example, 60 years of age or older), or a combination of both. We wish to clarify that providing such exemptions to members of hospitals' medical staff does not necessarily violate EMTALA. On the contrary, we believe that a hospital is responsible for maintaining an on-call list in a manner that best meets the needs of its patients as long as the exemption does not affect patient care adversely. Thus, CMS allows hospitals flexibility in the utilization of their emergency personnel.
We also note that there is no predetermined “ratio” that CMS uses to identify how many days a hospital must provide medical staff on-call coverage based on the number of physicians on staff for that particular specialty. In particular, CMS has no rule stating that whenever there are at least three physicians in a specialty, the hospital must provide 24 hour/7 day coverage in that specialty. Generally, in determining EMTALA compliance, CMS will consider all relevant factors, including the number of physicians on staff, other demands on these physicians, the frequency with which the hospital's patients typically require services of on-call physicians, and the provisions the hospital has made for situations in which a physician in the specialty is not available or the on-call physician is unable to respond.
To clarify our policies on EMTALA requirements regarding the availability of on-call physicians, in the May 9, 2002 proposed rule, we proposed to add to § 489.24 a new paragraph (j) to specify that each hospital has the discretion to maintain the on-call list in a manner to best meet the needs of its patients. This proposed paragraph further specified that physicians, including specialists and subspecialists (for example, neurologists), are not required to be on call at all times, and that the hospital must have policies and procedures to be followed when a particular specialty is not available or the on-call physician cannot respond because of situations beyond his or her control.
One commenter suggested that adoption of the more flexible regulations on on-call responsibility would only exacerbate this problem. To prevent that, the commenter recommended that a hospital that is unable to maintain full-time specialty coverage in one or more areas be required to have a transfer agreement with a hospital that has that level of coverage and will accept all patients in that specialty or subspecialty area. The commenter also recommended that we prescribe a maximum time for which patients could be required to wait in the emergency department for specialty care and that provision be made for patients who must be held beyond that time to be admitted either to an inpatient bed or to an outpatient holding area outside the emergency department, to await the arrival of a specialist. The commenter noted that this placement would not end the hospital's EMTALA obligation, but would free emergency department resources to permit more emergency patients to be treated.
We also agree that it would be appropriate for hospitals to limit individuals' waiting time in the emergency department, and to either admit the individual as an inpatient or move him or her to another appropriate outpatient area for treatment in cases where the arrival of a specialist is unavoidably delayed. However, given the heavy demand on emergency department resources and the variations in numbers of patients needing emergency care, we do not believe it is feasible to mandate uniform national limits on how long patients may be held in emergency departments.
Regarding the recommendation that a hospital be required to provide on-call coverage in any specialty offered to the hospital's patients, we agree that this would be a reasonable expectation and note that interpretative guidelines for EMTALA in the Medicare State Operations Manual (CMS Publication No. 7), page V-15, state that if a hospital offers a service to the public, the service should be available through on-call coverage of the emergency department. However, we are concerned that if this expectation were adopted as a requirement for all hospitals with emergency departments as part of this final rule, it might establish an unrealistically high standard that not all hospitals could meet. Therefore, we are not adopting this comment in this final rule.
Some commenters recommended that the regulations be further revised to more specifically address the responsibilities of physicians to make themselves available when on call, the accountability of physicians for EMTALA compliance, and the acceptability of transferring patients when specialty physicians are not available. Other commenters recommended that more specific rules
Another commenter cited a study by the University of California at Los Angeles titled “A Day in the Life of a California Emergency Department: Waiting Times and Resources, Trends in Use and Capacity, and Perceptions of Emergency Professionals.” The commenter stated that the study finding indicated that, during the study period (December 2000 through May 2001), a significant number of on-call physicians either did not respond to call at all or responded only after a delay of at least 20 minutes, and that many took longer than 35 minutes to arrive. The commenter stated that the study documents the refusal of many on-call physicians to fulfill their on-call responsibilities and argued that hospitals should not be held responsible in such cases.
Another commenter also believed the proposed rules unfairly burden hospitals with the responsibility for maintaining on-call coverage but do not provide any guidance on a medical staff member's obligation to participate in on-call panels. The commenter expressed concern that the proposed language would, if adopted, allow physicians to either refuse to be on call, shift their practices to facilities not requiring on-call service, or demand exorbitant payment for on-call service. To avoid these effects, the commenter recommended that CMS either furnish additional detailed guidance on how hospitals can obtain on-call coverage when physicians refuse to provide it, or mandate that participation on on-call panels at hospitals subject to EMTALA is required as a condition of being a Medicare-participating physician.
Regarding situations in which physicians may irresponsibly refuse to fulfill the on-call responsibilities they have agreed to accept, we note that current law (section 1867(d)(1)(B) of the Act) provides penalties for physicians who negligently violate a requirement of section 1867 of the Act, including on-call physicians who refuse to appear when called. We further note that physicians who practice in hospitals do so under privileges extended to them by those hospitals, and that hospitals facing a refusal by physicians to assume on-call responsibilities or to carry out the responsibilities they have assumed could suspend, curtail, or revoke the offending physician's practice privileges. Moreover, when an EMTALA violation involving on-call coverage is found to have occurred, surveyors and CMS regional office staff will review all facts of the situation carefully to ensure that hospitals that have acted in good faith to ensure on-call coverage are not unfairly penalized for failure by individual physicians to fulfill their obligations.
Therefore, we are not making any change in the final rule based on these comments.
Other commenters also expressed concern about diminished access to on-call services as a result of perceptions of the proposals. These commenters stated that, because public hospitals typically are the only hospitals in a community committed to maintaining full-time on-call coverage in many specialties, other hospitals may view flexible requirements in this area as an opportunity to reduce their on-call coverage, thus further unfairly shifting the on-call burden to public hospitals and the physicians who practice in them. The commenters believed CMS should issue guidance stating more specifically how hospitals that maintain less than full-time on-call coverage will be evaluated under EMTALA.
Some commenters suggested that the physician's performance of elective surgery that a physician has freely undertaken should be used as an example of a circumstance that is beyond the physician's control. One of these commenters recommended that physicians who have agreed to be on call, but subsequently engage in activities that make it impossible to fulfill their commitment, should be allowed to make alternative arrangements for responding to calls. Another commenter recommended that the regulations be revised to provide specific examples of situations beyond a physician's control.
Still another commenter recommended that proposed paragraph (j) be revised to state that physicians may provide simultaneous call at more than one hospital, provided the number and geographic proximity of the hospitals are such that a single physician can reasonably provide on-call services at each facility. The commenter recommended that further language be added to state that physicians who are on call may schedule office visits or elective surgery without incurring penalties under EMTALA. The commenter believed the policies and procedures of the hospital for responding to situations in which the particular specialty is not available or the on-call physician cannot respond because of circumstances beyond the physician's control should be developed in consultation with the hospital's medical staff and that the examples of situations beyond a physician's control should include situations when the physician is already treating another patient. Some commenters stated that a Program Memorandum issued by CMS on June 13, 2002, stated that when a physician is performing surgery while being on call, having another physician available to respond to calls is an acceptable way to fulfill the physician's on-call responsibility but that having the capability to arrange appropriate transfers is also an acceptable form of compliance. The commenters recommended that CMS revise proposed § 489.24(j) to reflect this policy.
Another commenter stated that the regulation should state more specifically what types of back-up plans would be acceptable when a physician has scheduled elective surgery while on call.
In addition, the letter clarifies that hospitals must have policies and procedures to follow when an on-call physician is simultaneously on call at another hospital and is not available to respond. Hospital policies may include, but are not limited to, procedures for back-up on-call physicians, or the implementation of an appropriate EMTALA transfer according to § 489.24(d). The letter reaffirms CMS' view that hospitals have flexibility in adopting specific policies and procedures to meet their EMTALA obligations, so long as they meet the needs of the individuals who present for emergency care.
To avoid any misunderstanding of our policies in this area, we are revising proposed § 489.24(j) in this final rule to state the conditions under which simultaneous calls and elective surgery while on call are permitted.
Another commenter suggested that while subspecialists may be better qualified in their general specialties than emergency physicians, generalists may not necessarily be equally competent for all patients. For example, an ophthalmologist specializing in corneal or retinal surgery may have greater expertise in general ophthalmology than an emergency physician, but a fully competent general surgeon may nevertheless not have the specialized training and experience needed to perform emergency surgery on an infant. The commenter recommended that the regulations be revised to make it clear that, in such cases, the on-call physician is permitted to fulfill his or her on-call obligation by calling in another physician who has the necessary skills to care for the patient. The commenter also recommended formation of a private-public work group, similar to that described in proposed legislation (H.R. 3191, the “Medicare Appeals, Regulatory, and Contracting Improvement Act of 2001”) to assist in resolving on-call issues. Another commenter recommended that the regulations be revised to state that physicians are not required to respond to calls for types of care for which they do not hold privileges.
In this final rule, we are adopting the proposed § 489.24(j) as final with the following modifications: We are specifying that the on-call list must be maintained in a manner that best meets the needs of the hospital's patients who are receiving services required under EMTALA, in accordance with the capability of the hospital, including the availability of on-call physicians. We also are revising paragraph (j) to state the conditions under which simultaneous call and elective surgery while on call are permitted. For editorial reasons, we are revising the language of § 489.24 to state under paragraph (j)(3)(ii) that hospitals must “provide” rather than “insure” that emergency services are available. No change in policy is being made by this editorial change.
We stated in the June 22, 1994 final rule (59 FR 32098) that if an individual is in an ambulance owned and operated by a hospital, the individual is considered to have come to the hospital's emergency department, even if the ambulance is not on hospital property. This policy, currently set forth at § 489.24(b), was necessary because we were concerned that some hospitals that owned and operated ambulances at that time were transporting individuals who had called for an ambulance to other hospitals, thereby evading their EMTALA responsibilities to the individuals.
Concerns have since been raised by the provider industry about applications of this policy to ambulances that are owned by hospitals but are operating under communitywide EMS protocols that may require the hospital-owned and other ambulances to transport individuals to locations other than the hospitals that own the ambulances. For instance, we understand that some community protocols require ambulances to transport individuals to the closest hospital to the individual geographically, whether or not that hospital owns the ambulance.
To avoid imposing requirements that are inconsistent with local EMS requirements, in the May 9, 2002 proposed rule, we proposed to clarify, at proposed revised § 489.24(b), in paragraph (3) of the definition of “Comes to the emergency department”, an exception to our existing rule requiring EMTALA applicability to hospitals that own and operate ambulances. We proposed to account for hospital-owned ambulances operating under communitywide EMS protocols. Under our proposal, the rule on hospital-owned ambulances and EMTALA does not apply if the ambulance is operating under a communitywide EMS protocol that requires it to transport the individual to a hospital other than the hospital that owns the ambulance. In this case, the individual is considered to have come to the emergency department of the hospital to which the individual is transported, at the time the individual is brought onto hospital property.
Another commenter recommended that the regulations be further revised to state that individuals presenting to
We understand that the term “hospital-owned ambulances operating under medical command” describes a situation in which the destination of an ambulance is not determined by the ambulance personnel but by a physician in radio contact with ambulances in the community. We believe individuals on board such ambulances would not be considered to have “come to the hospital” for EMTALA purposes if the physician providing the medical command is not employed or otherwise affiliated with the hospital that owns the ambulance. If the physician's direction of the ambulance (medical command) is provided subject to communitywide protocols that require the individual to be transported to a hospital other than the hospital that owns the ambulance, such as the closest appropriate hospital, the hospital would be considered to be operating under communitywide protocols. With respect to situations in which hospital EMS personnel on board the ambulance determine that transporting the individual to the owner hospital would put the patient's life or safety at risk, we recognize that there may be some situations in which redirection of the ambulance is necessary to protect the life or safety of the individual and that under these circumstances it would not be an EMTALA violation to transport the individual to the closest hospital capable of treating his or her condition. However, we believe such cases can best be identified and resolved on a case-by-case basis and, therefore, are not revising the final regulations based on this comment.
To help inform hospitals of their responsibilities in such situations, we have added a new paragraph (a)(2) to § 489.24(a). The new paragraph specifies that sanctions under EMTALA for an inappropriate transfer during a national emergency do not apply to a hospital with a dedicated emergency department located in an emergency area, as specified in section 1135(g)(1) of the Act. In the event of such a national emergency, CMS would issue appropriate guidance to hospitals.
Regarding the redirection of an ambulance at the request of the individual's family, we believe existing regulations at § 489.24(c)(2) (now § 489.24(d)(3) of this final rule) regarding informed refusals of treatment would permit the ambulance to transport the individual to another facility. A medical record for the individual must be established and the refusal clearly documented in that record, in accordance with these regulatory requirements.
We are adopting, as final, the proposed revision to paragraph (3) under the definition of “come to the emergency department” under § 489.24(b) as it related to the applicability to EMTALA to hospital-owned ambulances, with the following modifications:
We are specifying the nonapplicability of EMTALA to hospital-owned “air” ambulances (in addition to ground ambulances), when the ambulance is operating under communitywide protocols.
We are specifying that an individual in an ambulance owned and operated by the hospital is not considered to have “come to the emergency department” if the ambulance is operated under communitywide EMS protocols or EMS protocols “mandated by State law” that direct it to transport the individual to a hospital other than the hospital that owns the ambulance. We also are specifying that an individual in an ambulance owned and operated by the hospital is not considered to have “come to the emergency department” if the ambulance is operated at the direction of a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance or if the physician's direction of the destination of the ambulance is subject to communitywide protocols that require the individual to be transported to a hospital other than the hospital that owns the ambulance.
We are changing the term “closest hospital” to “closest appropriate facility”.
In addition, we are adding a new § 489.24(a)(2) to specify EMTALA responsibilities in the event of a bioterrorist attack.
We are reminding hospitals and others that while these final regulations make it clear that, while stabilizing an individual with an emergency medical condition (or admitting the individual to the hospital as an inpatient) relieves the hospital of its EMTALA obligations, it does not relieve the hospital of all further responsibility for the patient who is admitted. Stabilization or inpatient admission also does not indicate that the hospital is thus free to improperly discharge or transfer the individual to another facility. Inpatients who experience acute medical conditions receive protections under the Medicare hospital CoPs, which are found at 42 CFR part 482. In addition, as noted earlier in this preamble and in the May 9, 2002 proposed rule preamble, we believe that outpatients who experience what may be an emergency medical condition after the start of an encounter with a health professional would have all protections afforded to patients of a hospital under the Medicare hospital CoPs. There are six hospital CoPs that provide these protections: emergency services, governing body, discharge planning, quality assessment and performance improvement, medical staff, and outpatient services. In the May 9, 2002 proposed rule, we proposed to make only one change in these CoPs: one relating to the governing body having written policies and procedures in effect for off-campus departments that do not offer emergency services for appraisal of emergencies and referral when appropriate (§ 482.12(f)(3)).
If a hospital inpatient develops an acute medical condition and the hospital is one that provides emergency services, the hospital is required to ensure that it meets the emergency needs of the patient in accordance with accepted standards of practice. Similarly, regardless of whether the hospital provides emergency services, if an inpatient develops an acute medical condition, the governing body CoP (§ 482.12(f)(2), which applies to all Medicare-participating hospitals) would apply. This CoP requires that the hospital governing body must ensure that the medical staff has written policies and procedures for appraisal of emergencies, initial treatment, and referral when appropriate.
The discharge planning CoP (§ 482.43, which applies to all Medicare-participating hospitals) requires hospitals to have a discharge planning process that applies to all patients. This CoP ensures that patient needs are identified and that transfers and referrals reflecting adequate discharge planning are made by the hospital. If an inpatient develops an acute medical condition and the hospital either does not offer emergency services or does not have the capability to provide necessary treatment, a transfer to another hospital with the capabilities to treat the emergency medical condition could be warranted. Hospitals are required to meet the discharge planning CoP in carrying out such a transfer.
The hospital CoP governing medical staff (§ 482.22) requires that the hospital have an organized medical staff that operates under bylaws approved by the governing body and is responsible to the governing body for the quality of medical care provided to patients by the hospital. Should the medical staff not be held accountable to the governing body for problems regarding a lack of provision of care to an inpatient who develops an emergency medical condition, this lack of accountability may be reviewed under the medical staff CoP, as well, and may result in a citation of noncompliance at the medical staff condition level for the hospital.
Finally, the quality assessment and performance improvement CoP (§ 482.21, which applies to all Medicare-participating hospitals) requires the governing body to ensure that there is an effective, hospital-wide quality assessment and performance improvement program to evaluate the provision of patient care. In order to comply with this CoP, the hospital must evaluate the care it provides hospital-wide. Complaints regarding a lack of provision of care to an inpatient who develops an emergency medical condition must be addressed under the hospital's quality assurance program and may be reviewed under the quality assessment and performance improvement CoP.
A hospital's failure to meet the CoPs requirements cited above may result in a finding of noncompliance at the condition level for the hospital and lead to termination of the hospital's Medicare provider agreement. As we explained in the preamble to the January 24, 2003 final rule (69 FR 3435), the CoPs are the requirements that hospitals must meet to participate in the Medicare and Medicaid programs. The
Under the authority of section 1865 of the Act and the regulations at § 488.5, hospitals accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) or the American Osteopathic Association (AOA) are deemed to meet the requirements in the CoPs, and therefore, are not routinely surveyed for CoP compliance by the SAs. However, all Medicare and Medicaid participating hospitals are required to be in compliance with our CoPs regardless of their accreditation status.
Because we believe that the burden of having a plan in place to deal with an occasional emergency is minimal and the potential benefit to the individual of having such a plan is considerable, we are not making changes to the proposed CoP in this final rule in response to this comment.
In addition to the changes to § 489.24 discussed in sections V. through XIII. of this preamble, we are revising § 489.24(d)(3) (Refusal to consent to treatment) to refer to an individual or a person acting on the individual's behalf who “does not consent to the examination or treatment,” rather than referring to an individual or a person acting on the individual's behalf who “refuses to consent to examination and treatment.” We are making a parallel change in § 489.24(d)(5) (Refusal to consent to transfer). We are making these changes only for editorial reasons and in the interest of clarity; these revisions do not represent any change in policy.
We received a number of public comments on issues that were not addressed as part of the May 9, 2002 proposed rule. Because the issues addressed in the comments were not part of the proposed rule, we are not providing responses to them in this final rule. We will consider them in the future if we consider changes in related policy areas.
Under the Paperwork Reduction Act (PRA) of 1995, we are required to provide 60-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
Therefore, we are soliciting public comments on each of these issues for the information collection requirements discussed below.
New § 482.12(f)(3) specifies that, if emergency services are provided at the hospital but are not provided at one or more off-campus departments of the hospital, the governing body of the hospital must assure that the medical staff have written policies and procedures in effect with respect to the off-campus department(s) for appraisal of emergencies and referral when appropriate.
While this information collection requirement is subject to the PRA, the fact that this requirement is a usual, customary, and prudent business and
In the May 9, 2002 proposed rule (67 FR 31496), we solicited, public comment on this information collection requirement. However, we did not receive any public comments on this information collection requirement.
Paragraph (d) of this section requires that, if the hospital offers an individual the further medical examination and treatment described in that paragraph and informs the individual (or a person acting on the individual's behalf) of the risks and benefits to the individual of the examination and treatment, but the individual (or a person acting on the individual's behalf) does not consent to the examination or treatment: (1) The medical record must contain a description of the examination, treatment, or both if applicable, that was refused by or on behalf of the individual; (2) the hospital must take all reasonable steps to secure the individual's written informed refusal (or that of the person acting on his or her behalf); and (3) the written document should indicate that the person has been informed of the risks and benefits of the examination or treatment, or both.
Paragraph (d) of this section also requires that, if the hospital offers to transfer the individual to another medical facility in accordance with paragraph (e) of this section and informs the individual (or a person acting on his or her behalf) of the risks and benefits to the individual of the transfer, but the individual (or a person acting on the individual's behalf) does not consent to the transfer: (1) The hospital must take all reasonable steps to secure the individual's written informed refusal (or that of a person acting on his or her behalf); (2) the written document must indicate the person has been informed of the risks and benefits of the transfer and state the reasons for the individual's refusal; and (3) the medical record must contain a description of the proposed transfer that was refused by or on behalf of the individual.
The burden associated with these requirements is the time it will take a hospital to secure a written refusal, create a written document containing the information the patient has been given, and describing in the patient's record what was refused. These information collection requirements are currently approved under 0938-0667.
Paragraph (j) of this section requires that each hospital must maintain an on-call list of physicians on its medical staff in a manner that best meets the needs of the hospital's patients who are receiving services required under this section in accordance with the resources available to the hospital, including the availability of on-call physicians. It also requires that the hospital have written policies and procedures in place to respond to situations in which a particular specialty is not available or the on-call physician cannot respond because of circumstances beyond the physician's control and to provide that emergency services are available to meet the needs of patients with emergency medical conditions if it elects to permit on-call physicians to schedule elective surgery during the time that they are on call or to permit on-call physicians to have simultaneous on-call duties.
The burden associated with these requirements is the time it will take to create the list and write down the policies and procedures. We believe that these actions reflect usual, customary, and prudent medical and business practices; the burden is exempt from the PRA under 5 CFR 1320.3(b)(2). We believe that the providers have the necessary written information available to the staff in times of emergencies to reduce the time it takes to contact a doctor or to decide what to do if the doctor is unavailable. These actions benefit the patient and give the provider liability protection.
We note that these requirements in paragraph (j) are revisions of provisions that were included in the May 9, 2002 proposed rule.
We have submitted a copy of this final rule to OMB for its review of the information collection requirements described above. These requirements are not effective until they have been approved by OMB.
If you comment on any of these information collection and record keeping requirements, please mail copies directly to the following:
Comments submitted to OMB may also be e-mailed to the following address: e-mail:
We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year).
We have determined that this final rule is not a major rule as defined in 5 U.S.C. 804(2). As explained below, we do not have sufficient information to estimate the precise economic impact of this final rule. However, in general, this final rule diminishes rather than increases the EMTALA compliance burden on hospitals and physicians as this burden exists under current regulations. In both the previous EMTALA rules, the proposed EMTALA rule published on June 16, 1988 (53 FR 22513) and the preamble to the interim final rule published on June 22, 1994 (59 FR 32120), we explained, and the Secretary certified, that those regulations would not have a significant impact on a substantial number of small entities and would not have a significant impact on the operations of a substantial number of small rural hospitals. As explained above, this final rule further reduces compliance burden and cost. Therefore, we estimate that the total impact of these changes will be less than the threshold for a major rule ($100 million or more in any 1 year).
The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity.
In the preamble of the May 9, 2002 proposed rule, we stated that we believed it would be difficult to quantify the impact of the proposed changes and solicited comments on how such an impact estimate could be developed. We did not receive any comments on this point. Neither the proposed EMTALA rule published on June 16, 1988 (53 FR 22513) nor the interim final rule published on June 22, 1994 (50 FR 32086) included a quantitative analysis of the economic impact of the rule. However, in the preamble to each rule, we explained that because the great majority of hospitals do not refuse to treat individuals or transfer patients inappropriately based on their perceived inability to pay, the economic impact of those rules was minimal. Since this rule is only a modification of the previous EMTALA rules, we believe that the impact of this final rule is also minimal. For the reasons explained above, we are confident that the overall effect of this final rule will be to reduce rather than increase the EMTALA compliance burden for hospitals and physicians. For example, the compliance burden for hospitals will be reduced because off-campus provider-based departments that are not dedicated emergency departments will no longer have any EMTALA responsibilities. The burden for physicians should be reduced by the changes that allow them to be on call simultaneously at multiple locations, and to schedule other procedures while they are on call. Because we do not have enough information to precisely predict the dollar amount of the reduced burden, we have not attempted to produce a quantified estimate of the impact of this final rule. However, based on the reduction in burden relative to current regulations, we have determined that this final rule will not have a significant impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. With the exception of hospitals located in certain New England counties, for purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital with fewer than 100 beds that is located outside of a Metropolitan Statistical Area (MSA) or New England County Metropolitan Area (NECMA). Section 601(g) of the Social Security Amendments of 1983 (Pub. L. 98-21) designated hospitals in certain New England counties as belonging to the adjacent NECMA. Thus, for purposes of payments to hospitals, we classify these hospitals as urban hospitals. As explained above, the compliance burden and cost associated with this final rule is expected to be significantly less than the burden associated with existing regulations. Based on the reduction in burden relative to current regulations, we have determined that this final rule will not have a significant impact on the operations of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) also requires that agencies assess anticipated costs and benefits before issuing a final rule that has been preceded by a proposed rule that may result in an expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This final rule will not mandate any requirements that may result in an expenditure, in any 1 year for State, local, or tribal governments or for the private sector of $110 million.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed this final rule in light of Executive Order 13132 and have determined that it will not have any significant impact on the rights, roles, and responsibilities of State, local, or tribal governments.
In accordance with the provisions of Executive Order 12866, this final rule was reviewed by the Office of Management and Budget.
Health facilities, Kidney diseases, Medicare, Puerto Rico, Reporting and recordkeeping requirements.
Grant program-health, Hospitals, Medicaid, Medicare, Reporting and recordkeeping requirements.
Health facilities, Medicare, Reporting and recordkeeping requirements.
Secs. 1102, 1812(d), 1814(b), 1815, 1833(a), (i), and (n), 1871, 1881, 1883, and 1886 of the Social Security Act (42 U.S.C. 1302, 1395d(d), 1395f(b), 1395g, 1395l(a), (i), and (n), 1395hh, 1395rr, 1395tt, and 1395ww).
(g)
(1) The following departments must comply with the antidumping rules of § 489.20(l), (m), (q), and (r) and § 489.24 of this chapter:
(i) Any facility or organization that is located on the main hospital campus and is treated by Medicare under this section as a department of the hospital; and
(ii) Any facility or organization that is located off the main hospital campus that is treated by Medicare under this section as a department of the hospital and is a dedicated emergency department, as defined in § 489.24(b) of this chapter.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1320 and 1395hh).
(f)
(3) If emergency services are provided at the hospital but are not provided at one or more off-campus departments of the hospital, the governing body of the hospital must assure that the medical staff has written policies and procedures in effect with respect to the off-campus department(s) for appraisal of emergencies and referral when appropriate.
Secs. 1102 and 1871 of the Act (42 U.S.C. 1302 and 1395hh).
The additions and revisions read as follows:
(a)
(i) Provide an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists. The examination must be conducted by an individual(s) who is determined qualified by hospital bylaws or rules and regulations and who meets the requirements of § 482.55 of this chapter concerning emergency services personnel and direction; and
(ii) If an emergency medical condition is determined to exist, provide any necessary stabilizing treatment, as defined in paragraph (d) of this section, or an appropriate transfer as defined in paragraph (e) of this section. If the hospital admits the individual as an inpatient for further treatment, the hospital's obligation under this section ends, as specified in paragraph (d)(2) of this section.
(2)
(b)
(1) Has presented at a hospital's dedicated emergency department, as defined in this section, and requests examination or treatment for a medical condition, or has such a request made on his or her behalf. In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual's appearance or behavior, that the individual needs examination or treatment for a medical condition;
(2) Has presented on hospital property, as defined in this section, other than the dedicated emergency department, and requests examination or treatment for what may be an emergency medical condition, or has such a request made on his or her behalf. In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual's appearance or behavior, that the individual needs emergency examination or treatment;
(3) Is in a ground or air ambulance owned and operated by the hospital for purposes of examination and treatment for a medical condition at a hospital's
(i) The ambulance is operated under communitywide emergency medical service (EMS) protocols that direct it to transport the individual to a hospital other than the hospital that owns the ambulance; for example, to the closest appropriate facility. In this case, the individual is considered to have come to the emergency department of the hospital to which the individual is transported, at the time the individual is brought onto hospital property;
(ii) The ambulance is operated at the direction of a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance; or
(4) Is in a ground or air nonhospital-owned ambulance on hospital property for presentation for examination and treatment for a medical condition at a hospital's dedicated emergency department. However, an individual in a nonhospital-owned ambulance off hospital property is not considered to have come to the hospital's emergency department, even if a member of the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that they want to transport the individual to the hospital for examination and treatment. The hospital may direct the ambulance to another facility if it is in “diversionary status,” that is, it does not have the staff or facilities to accept any additional emergency patients. If, however, the ambulance staff disregards the hospital's diversion instructions and transports the individual onto hospital property, the individual is considered to have come to the emergency department.
(1) It is licensed by the State in which it is located under applicable State law as an emergency room or emergency department;
(2) It is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or
(3) During the calendar year immediately preceding the calendar year in which a determination under this section is being made, based on a representative sample of patient visits that occurred during that calendar year, it provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.
(1) An individual who has begun to receive outpatient services as part of an encounter, as defined in § 410.2 of this chapter, other than an encounter that the hospital is obligated by this section to provide;
(2) An individual who has been admitted as an inpatient, as defined in this section.
(c)
(d)
(i) Within the capabilities of the staff and facilities available at the hospital, for further medical examination and treatment as required to stabilize the medical condition.
(ii) For transfer of the individual to another medical facility in accordance with paragraph (e) of this section.
(2)
(ii) This section is not applicable to an inpatient who was admitted for elective (nonemergency) diagnosis or treatment.
(iii) A hospital is required by the conditions of participation for hospitals under Part 482 of this chapter to provide care to its inpatients in accordance with those conditions of participation.
(3)
(4)
(i) A participating hospital may not delay providing an appropriate medical screening examination required under paragraph (a) of this section or further medical examination and treatment required under paragraph (d)(1) of this section in order to inquire about the individual's method of payment or insurance status.
(ii) A participating hospital may not seek, or direct an individual to seek, authorization from the individual's insurance company for screening or stabilization services to be furnished by a hospital, physician, or nonphysician practitioner to an individual until after the hospital has provided the appropriate medical screening examination required under paragraph (a) of this section, and initiated any further medical examination and treatment that may be required to stabilize the emergency medical condition under paragraph (d)(1) of this section.
(iii) An emergency physician or nonphysician practitioner is not precluded from contacting the individual's physician at any time to seek advice regarding the individual's medical history and needs that may be relevant to the medical treatment and screening of the patient, as long as this consultation does not inappropriately delay services required under paragraph (a) or paragraphs (d)(1) and (d)(2) of this section.
(iv) Hospitals may follow reasonable registration processes for individuals for whom examination or treatment is required by this section, including asking whether an individual is insured and, if so, what that insurance is, as long as that inquiry does not delay screening or treatment. Reasonable registration processes may not unduly discourage individuals from remaining for further evaluation.
(5)
(j)
(2) The hospital must have written policies and procedures in place—
(i) To respond to situations in which a particular specialty is not available or the on-call physician cannot respond because of circumstances beyond the physician's control; and
(ii) To provide that emergency services are available to meet the needs of patients with emergency medical conditions if it elects to permit on-call physicians to schedule elective surgery during the time that they are on call or to permit on-call physicians to have simultaneous on-call duties.
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would revise the classification criterion, commonly known as the “75 percent rule,” used to classify a hospital as an inpatient rehabilitation facility (IRF). This proposed rule would also modify and expand the medical conditions listed in the 75 percent rule regulatory requirements as well as lower the percentage of patients required to fall within one of the specified list of medical criteria.
We will consider comments if we receive them at the appropriate address, as provided below, no later than 5 p.m. on November 3, 2003.
In commenting, please refer to file code CMS-1262-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission or e-mail. Mail written comments (one original and two copies) to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1262-P, P.O. Box 8010, Baltimore, MD 21244-8010.
Please allow sufficient time for mailed comments to be timely received in the event of delivery delays.
If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) to one of the following addresses: Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201, or Room C5-14-03, 7500 Security Boulevard, Baltimore, MD 21244-1850. (Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and could be considered late. For information on viewing public comments, see the beginning of the
Robert Kuhl, (410) 786-4597; or Pete Diaz, (410) 786-1235; or Nora Hoban, (410) 786-0675.
This
Section 1886(j) of the Social Security Act (the Act) provides for the implementation of a prospective payment system (PPS) under Medicare for inpatient hospital services furnished by a rehabilitation hospital or a rehabilitation unit of a hospital (referred to as an inpatient rehabilitation facility (IRF)). Sections 1886(d)(1)(B) and 1886(d)(1)(B)(ii) of the Act give the Secretary the discretion to define a rehabilitation hospital and unit. The regulations at 42 CFR 412.23(b), 412.25, and 412.29, specify the criteria for a provider to be classified as a rehabilitation hospital or rehabilitation unit. Hospitals and units meeting those criteria are eligible to be paid on a prospective payment basis as an IRF under the IRF PPS.
Payments made under the IRF PPS cover inpatient operating and capital costs of furnishing covered intensive rehabilitation services (that is, routine, ancillary, and capital costs), but do not cover costs of approved educational activities, bad debts, and other services or items outside the scope of the IRF PPS. Covered intensive rehabilitation services include services for which benefits are provided under Medicare Part A (Hospital Insurance).
Payments under the IRF PPS are made on a per discharge basis. A patient classification system is used to assign patients in IRFs into case-mix groups (CMGs). The IRF PPS uses Federal prospective payment rates across distinct CMGs. We construct a majority of the CMGs using rehabilitation impairment categories (RICs), functional status (both motor and cognitive), and age (though some CMGs do not use cognitive status or age in their definition). We construct special CMGs to account for very short stays and for patients who expire during the IRF stay.
For each CMG, we develop relative weighting factors to account for a patient's clinical characteristics and expected resource consumption. Thus, the weighting factors account for the relative difference in resource use across all CMGs. Within each CMG, the weighting factors are “tiered” based on the estimated effect that the comorbidities from appendix C of the August 7, 2001 final rule (66 FR 41414) have on resource use.
The Federal prospective payment rates are established using a standard payment amount (also referred to as the budget neutral conversion factor). For each of the tiers within a CMG, we apply the relative weighting factors to the budget neutral conversion factor to compute the unadjusted Federal prospective payment rates.
Adjustments that account for geographic variations in wages (wage index), for the percentage of low-income patients, and for facilities located in a rural area are applied to the unadjusted Federal prospective payment rates. In addition, adjustments are made for early transfers of patients to other facilities, interrupted stays, and high-cost outliers (cases with usually extraordinarily high costs).
The regulations implementing the IRF PPS provisions are presently in 42 CFR part 412, subpart P. Regulations governing the requirements for classification of hospitals as IRFs are located in § 412.22, § 412.23, § 412.25, and § 412.29. Section 412.23(b)(2) is commonly known as the “75 percent
For a more complete discussion of the development of the IRF PPS see our August 7, 2001 final rule (66 FR 41316). We also have established a CMS website that contains useful information regarding the IRF PPS. The website URL is
On May 16, 2003, we published a proposed rule titled “Medicare Program; Changes to the Inpatient Rehabilitation Facility Prospective Payment System and Fiscal Year 2004 Rates” in the
In the May 16, 2003 proposed rule, we solicited public comments on the regulatory requirements in § 412.23(b)(2). As stated previously and discussed more fully in section I.B.2. of this preamble, § 412.23(b)(2) provides that the requirements of 75 percent rule be met for a provider to be classified as an IRF. On May 19, 2003, we held a Town Hall meeting at our headquarters in Baltimore, MD, in which views regarding all aspects of the IRF PPS could be expressed. Hundreds of people participated in the Town Hall meeting either by attending at CMS headquarters or by a conference call. Most of the participants, however, limited their testimony to the 75 percent rule.
In response to the May 16, 2003 proposed rule, we received over 6,000 timely public comments regarding the regulatory requirements in § 412.23(b)(2). The primary issues discussed during the Town Hall meeting and in the public comments are summarized as follows:
• The regulatory requirement specifying the 10 medical conditions contained in § 412.23(b)(2) should be repealed or amended.
• The 10 medical conditions specified in § 412.23(b)(2) do not adequately reflect current care in IRFs.
• The medical conditions specified in § 412.23(b)(2) have not been updated in 20 years and should be revised or re-written to include other diagnoses.
• Some of the medical conditions specified in § 412.23(b)(2) are vague; they have little clinical relevance; and are inconsistently interpreted by our fiscal intermediaries who are charged with enforcing the 75 percent rule.
• CMS administrative data indicate most IRFs are not in compliance with § 412.23(b)(2).
• Classification as an IRF should be based on 20 of the 21 RICs.
• Enforcement of the rule could force many IRFs to close.
• Enforcement of the rule limits access to care.
• Treatment in other rehabilitation treatment settings is inferior to treatment furnished in an IRF.
In the May 16, 2003 proposed rule, we did not propose amending the regulatory requirements in § 412.23(b)(2). In this proposed rule, we are proposing amending the requirements in § 412.23(b)(2) as discussed in section II of the preamble.
As stated in the August 7, 2001 final rule, we did not change the survey and certification procedures for classification as an IRF. Currently, a hospital or unit of a hospital must first be deemed excluded from the diagnosis-related group (DRG)-based acute care hospital PPS to be paid under the IRF PPS and must meet the general requirements in subpart B of part 412. Secondly, the excluded hospital or unit of the hospital must meet the conditions for payment under the IRF PPS at § 412.604. As specified at § 412.604(b), a provider, among other things, must be in compliance with all the criteria specified in § 412.23(b) to be classified as an IRF.
Under § 412.23(b)(2) of the existing regulations, a facility may be classified as an IRF if it can show that, during its most recent 12-month cost reporting period, it served an inpatient population of whom at least 75 percent required intensive rehabilitation services for the treatment of one or more of the following conditions:
• Stroke.
• Spinal cord injury.
• Congenital deformity.
• Amputation.
• Major multiple trauma.
• Fracture of femur (hip fracture).
• Brain injury.
• Polyarthritis, including rheumatoid arthritis.
• Neurological disorders, including multiple sclerosis, motor neuron diseases, polyneuropathy, muscular dystrophy, and Parkinson's disease.
• Burns.
We initially stipulated the “75 percent” requirement in the September 1, 1983, interim final rule with comment period entitled “Medicare Program; Prospective Payments for Medicare Inpatient Hospital Services” (48 FR 39752). That interim final rule implemented the Social Security Amendments of 1983 (Pub. L. 98-21), changing the method of payment for inpatient hospital services from a cost-based, retrospective reimbursement system to a diagnosis-specific inpatient PPS. However, the rule stipulated that, in accordance with sections 1886(d)(1)(B) and 1886(d)(1)(B)(ii) of the Act, both a rehabilitation unit, which is a distinct part of a hospital, and a rehabilitation hospital would be excluded from the IPPS. We noted that sections 1886(d)(1)(B) and 1886(d)(1)(B)(ii) of the Act also gave the Secretary broad discretion to define a “rehabilitation unit” and a “rehabilitation hospital.”
We consulted with the Joint Commission on Accreditation of Hospitals (JCAH), and other accrediting organizations (JCAH is currently known as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)) to define a rehabilitation hospital. The criteria we included in our definition of a rehabilitation hospital incorporated some of the accreditation requirements of these organizations. The definition also included other criteria, which we believed distinguished a rehabilitation hospital from a hospital that furnished general medical and surgical services as well as some rehabilitation services. One criterion was that “The hospital must be primarily engaged in furnishing intensive rehabilitation services as demonstrated by patient medical records showing that, during the hospital's most recently completed 12-month cost reporting period, at least 75 percent of the hospital's inpatients were treated for one or more conditions specified in these regulations that typically require intensive inpatient rehabilitation” (48 FR 39756). This requirement was originally specified in
The original medical conditions specified in § 405.471(c)(2)(ii) were stroke, spinal cord injury, congenital deformity, amputation, major multiple trauma, fracture of femur (hip fracture), brain injury, and polyarthritis, including rheumatoid arthritis. This list of eight medical conditions was partly based upon the information contained in a document entitled “Sample Screening Criteria for Review of Admissions to Comprehensive Medical Rehabilitation Hospitals/Units.” This document was a product of the Committee on Rehabilitation Criteria for the Professional Standards Review Organization of the American Academy of Physical Medicine and Rehabilitation and the American Congress of Rehabilitation Medicine. In addition, we received input from the National Association of Rehabilitation Facilities and the American Hospital Association. The requirement that 75 percent of an IRF's patient population must have one or more of the medical conditions listed in the regulation was due to the finding that the listed medical conditions accounted for approximately 75 percent of the admissions to IRFs at the time.
On January 3, 1984, we published a final rule entitled “Medicare Program; Prospective Payment for Medicare Inpatient Hospital Services” (49 FR 234). On page 240 of that final rule, we summarized comments that requested inclusion of neurological disorders, burns, chronic pain, pulmonary disorders, and cardiac disorders in the list of medical conditions under the 75 percent rule. Our analysis of these comments led us to agree that neurological disorders (including multiple sclerosis, motor neuron diseases, polyneuropathy, muscular dystrophy, and Parkinson's disease) and burns should be added to the original list of eight medical conditions under the 75 percent rule (49 FR 240). We did not agree with comments that we lower from 75 to 60 the percentage of patients that must meet one of the medical conditions. Nor did we agree with comments urging us to use IRF resource consumption, instead of a percentage of patients that must have one or more of the specified medical conditions, to help define what is an IRF (49 FR 239-240). We also rejected suggestions that when an IRF could not meet the 75 percent rule, the facility should still be defined as an IRF based on the types of services it furnished.
On August 31, 1984, we published a final rule entitled “Medicare Program; Changes to the Inpatient Hospital Prospective Payment System and Fiscal Year 1985 Rates” (49 FR 34728). In that rule, we explained how the 75 percent rule applied to a new rehabilitation unit or rehabilitation hospital or to an increase in beds of an existing rehabilitation unit.
On March 29, 1985, we published a final rule entitled “Medicare Program; Prospective Payment System for Hospital Inpatient Services; Redesignation of Rules” (50 FR 12740). That rule redesignated provisions of § 405.471 that addressed the 75 percent rule as provisions under § 412.23.
On August 30, 1991, we published a final rule entitled “Medicare Program; Changes to the Inpatient Hospital Prospective Payment System and Fiscal Year 1992 Rates” (56 FR 43196). Since October 1, 1983, the regulations allowed a new rehabilitation hospital or a new rehabilitation unit, or an existing excluded rehabilitation unit that was to be expanded by the addition of new beds, to be excluded from the hospital inpatient PPS if, in addition to meeting other requirements, it submitted a written certification that during its first cost reporting period it would be in compliance with the 75 percent rule. The August 30, 1991, rule specified that, if these facilities were later found to have not complied with the 75 percent rule, we would determine the amount of actual payment under the exclusion, compute what we would have paid for the facility's services to Medicare patients under the IPPS, and recover any difference in accordance with the rules on the recoupment of overpayments.
On September 1, 1992, we published a final rule entitled “Medicare Program; Changes to Hospital Inpatient Prospective Payment Systems and Fiscal Year 1993 Rates” (57 FR 39746). In the rule, we acknowledged that, for various reasons, a new rehabilitation hospital or a new rehabilitation unit might need to begin operations at some time other than at the start of its regular cost reporting period. Therefore, we specified that an IRF could submit a written certification that it would comply with the 75 percent rule for both a partial cost reporting period of up to 11 months and the subsequent full 12-month cost reporting period.
On September 1, 1994, we published a final rule entitled “Medicare Program; Changes to the Hospital Inpatient Prospective Payment Systems and FY 1995 Rates” (59 FR 45330). In that final rule, we stated that we had miscellaneous comments requesting that oncology cases, pulmonary disorders, cardiac disorders, and chronic pain be added to the list of medical conditions under the 75 percent rule (59 FR 45393). We responded that, although the 75 percent rule had not been addressed in the associated May 27, 1994, proposed rule, we would take these miscellaneous comments into consideration if we decided to make changes to the 75 percent rule.
When we published the August 7, 2001 final rule (66 FR 41316), we acknowledged we had received comments requesting that we update the list of medical conditions specified in § 412.23(b)(2) or eliminate the regulation (66 FR 41321). We responded that in the November 3, 2000 IRF PPS proposed rule, we had not proposed amending the requirements in § 412.23(b)(2), and we believed the existing regulation was appropriate and, therefore, we would not be revising the requirements in § 412.23(b)(2). However, we also stated that data obtained after we implemented the IRF PPS could lead us to reconsider amending the requirements in § 412.23(b)(2).
In the spring of 2002, we surveyed the Medicare fiscal intermediaries (FIs) in order to ascertain what methods were being used to verify whether IRFs were complying with the requirements in § 412.23(b)(2). Analysis of the survey data made us aware that inconsistent methods were being used to determine whether an IRF was in compliance with the regulation. Also, some IRFs were not being reviewed to determine whether they were in compliance with the regulation. These survey results led us to become concerned that some IRFs may be out of compliance with the regulation and inappropriately classified as an IRF. In addition, we were concerned that some FIs might be using different methods to verify compliance with the requirements in § 412.23(b)(2). This practice may have resulted in an IRF being incorrectly considered out of compliance with the regulation. Thus, this practice had the potential to cause an IRF to inappropriately lose its classification as
In addition to our review of the administrative procedures used by our FIs, we conducted an analysis of CMS administrative data to attempt to estimate overall compliance with the regulation. We examined both the inpatient rehabilitation facility-patient assessment instrument (IRF-PAI) data and claims from the years 1998, 1999, and 2002. The patient assessment data was from January to August of 2002. We estimated that the percent of facilities with 75 percent of cases falling into the 10 conditions was 13.35 percent. We note that the analysis has a number of limitations. For example, it is not possible to discern from the diagnosis data on IRF-PAI or the claim whether there was a medical need to furnish the patient “intensive rehabilitation.” The diagnosis describes only some aspects of a patient's clinical status, but the diagnosis alone does not determine the medical necessity of treating a patient in an IRF as opposed to another type of treatment setting. In addition, all the information necessary to classify a case under 1 of the 10 conditions may not be present on the claim (for example, polyarthritis).
In the May 16, 2003 proposed rule, we indicated that we would be instructing FIs to re-institute appropriate enforcement action if they were to determine that an IRF has not complied with the requirements in § 412.23(b)(2). We realize that an IRF may need time to come into compliance with the regulation. An IRF's cost reporting period is the time period used to ascertain compliance with the requirements in § 412.23(b)(2). Therefore, we indicated that we were instructing the FIs that they must use cost reporting periods that begin on or after October 1, 2003, as the time period to ascertain an IRF's compliance with the requirements in § 412.23(b)(2). While in the May 16, 2003 proposed rule, we did not propose changes to § 412.23(b)(2), we indicated that we expect that improved enforcement and compliance with the existing rule will have varying impacts on providers and beneficiaries.
In the May 16, 2003 proposed rule, we indicated that while it is difficult to predict the aggregate impact of improved compliance on provider payments, we expect that IRFs or their parent hospitals, or both (80 percent of IRFs are units of acute care hospitals), will change their behavior in a variety of ways. IRFs may change admission practices to alter their case-mix, either Medicare or total patient population, by admitting patients with more intensive rehabilitative needs that fall into the 10 conditions. This practice could have the effect of elevating the facility's revenues because cases requiring more intensive rehabilitation care generally receive higher Medicare payments than less complex cases. On the other hand, enforcement of the 75 percent rule may cause some IRFs to reduce the number of beds and/or reduce the number of admissions that may result in a reduction of the facility's revenues.
The existing regulation reflects the fact that up to 25 percent of medically necessary admissions may fall outside of the 10 conditions. These cases can continue to be admitted and treated under the regulation. Other cases may appropriately receive rehabilitative care in alternative settings. For certain medically complex cases, it may be appropriate to lengthen the patient's stay in an acute care setting in order to stabilize his or her condition to prepare the patient to participate in rehabilitation. Alternative settings for rehabilitative care could include the acute care hospital, skilled nursing facilities, long-term care hospitals, outpatient rehabilitation facilities, and home health care. For this reason, we did not expect to see reduced access to care for Medicare beneficiaries as a result of improved compliance. In addition, because many hospitals having a Medicare certified IRF unit also have one or more other subunits that provide rehabilitation, revenues from these cases may be generated elsewhere within the same hospital.
As noted above, on June 7, 2002, we suspended enforcement of the 75 percent rule under § 412.23(b)(2). We accomplished the suspension of enforcement by the issuance of instructions to the FIs and, therefore, it was a method that was administrative and operational. The suspension of enforcement was communicated to the IRFs by CMS Regional Offices, the FIs, or other means such as regular telephone conferences between CMS and providers. Although the May 16, 2003 proposed rule stated that we would be re-instituting enforcement of § 412.23(b)(2) for cost reporting periods that start on or after October 1, 2003, we decided to revisit this issue due to the extensive public comments received on this issue. We are now proposing to amend § 412.23(b)(2) in this proposed rule. Therefore, we will not be re-instituting enforcement of the regulation for cost reporting periods beginning on or after October 1, 2003 as stated in the May 16, 2003 proposed rule. Instead, we are now proposing that the proposed amendments in § 412.23(b)(2) would be applicable to cost reporting periods that start on or after the effective date specified in the final rule that will be published subsequent to this proposed rule. We anticipate that the effective date of the final rule would be January 1, 2004.
The intent of the policy specified at § 412.23(b)(2), and of other policy criteria for IRFs, is to ensure that these facilities are unique compared to other hospitals in that they provide intensive rehabilitative services in an inpatient setting. The uniqueness of these facilities is the justification for paying them under a separate payment system rather than paying them with the same payment system for acute care inpatient PPS. We believe it is crucial that Medicare maintain criteria to ensure that only facilities providing intensive rehabilitation are identified as IRFs so that services are paid appropriately under the IRF PPS. In addition, we believe it is imperative to identify conditions that would “typically require intensive inpatient rehabilitation” in IRFs because rehabilitation in general can be delivered in a variety of settings such as acute care hospitals, skilled nursing facilities, and outpatient settings.
For the reasons set forth in the preamble, in section II.A., we are proposing in § 412.23(b)(2) “Excluded hospitals: Classifications,” to remove the reference to “75 percent.” We are proposing a new § 412.23(b)(2)(i) that specifies for cost reporting periods beginning on or after January 1, 2004 and before January 1, 2007, the hospital has served an inpatient population of whom at least 65 percent required intensive rehabilitative services for treatment of one or more of the conditions specified at paragraph (b)(2)(iii) of this section. A patient with a comorbidity, as defined at § 412.602, may be included in the inpatient population that counts towards the required 65 percent if—
• The patient is admitted for inpatient rehabilitation for a condition that is not one of the conditions specified at paragraph (b)(2)(iii) of this section;
• The patient has a comorbidity that falls in one of the conditions specified at paragraph (b)(2)(iii) of this section; and
• The comorbidity has caused significant functional ability decline in the individual such that, even in the absence of the admitting condition, the individual would require the intensive rehabilitation treatment that is unique to inpatient rehabilitation facilities paid under subpart P of this part and which cannot be appropriately performed in another care setting covered under this title.
We are also proposing a new § 412.23(b)(2)(ii) that specifies for cost reporting periods beginning on or after January 1, 2007, the hospital has served an inpatient population of whom at least 75 percent required intensive rehabilitative services for treatment of one or more of the conditions specified at paragraph (b)(2)(iii) of this section.
In proposed § 412.23(b)(2)(iii), we are proposing to retain the existing conditions except for polyarthritis, which we are proposing to replace with the following three new conditions:
• Active, polyarticular rheumatoid arthritis, psoriatic arthritis, and seronegative arthropathies resulting in significant functional impairment of ambulation and other activities of daily living, which has not improved after an appropriate, aggressive, and sustained course of outpatient therapy services or services in other less intensive rehabilitation settings immediately preceding the inpatient rehabilitation admission or which results from a systemic disease activation immediately before admission, but has the potential to improve with more intensive rehabilitation.
• Systemic vasculidities with joint inflammation, resulting in significant functional impairment of ambulation and other activities of daily living, which has not improved after an appropriate, aggressive, and sustained course of outpatient therapy services or services in other less intensive rehabilitation settings immediately preceding the inpatient rehabilitation admission or which results from a systemic disease activation immediately before admission, but has the potential to improve with more intensive rehabilitation.
• Severe or advanced osteoarthritis (osteoarthrosis or degenerative joint disease) involving three or more major joints (elbow, shoulders, hips, or knees) with joint deformity and substantial loss of range of motion, atrophy, significant functional impairment of ambulation and other activities of daily living, which has not improved after an appropriate, aggressive, and sustained course of outpatient therapy services or services in other less intensive rehabilitation settings immediately preceding the inpatient rehabilitation admission but has the potential to improve with more intensive rehabilitation. (A joint replaced by a prosthesis no longer is considered to have osteoarthritis, or other arthritis, even though this condition was the reason for the joint replacement.)
Furthermore, in section II.C., we are proposing the possible use of comorbidities to verify compliance with proposed § 412.23(b)(2).
We are also proposing to phase-out the reduction from 75 percent to 65 percent and the use of commorbities to verify compliance, as discussed in section II.D., on January 1, 2007 with the intention of using data acquired and analysis performed during this period to revise the rule, if necessary, prior to the phase-out date. Lastly, in section II.E., we are proposing to change the time period used to determine compliance with the proposed 65 percent rule.
Under proposed § 412.23(b)(2)(i), we are proposing, starting with the effective date of the final rule and subject to the proposed phase-out provision discussed in section II.D., to change the percentage of the total IRF patient population used as a criterion to distinguish an IRF from an acute care hospital from 75 percent to 65 percent.
We recognize that rehabilitation practice may have changed since we developed the original list of conditions. We are, however, concerned that in some cases, patients may have been transferred inappropriately from the inpatient setting and, thus, these inappropriate responses may be responsible for some of these changes in rehabilitation practice rather than medical advances.
We believe that the list of medical conditions we are proposing in this rule identifies patients who typically can benefit from the type of intensive inpatient rehabilitation services provided by IRFs. We do, however, recognize that there may be certain atypical patients admitted for other conditions who may be appropriate for care in an IRF. As a precaution to mitigate any unintended effects on access to care while we perform the analysis discussed in section II.D, we are proposing to lower the percentage of cases to 65 percent. We welcome the development and presentation of objective evidence that shows the type of patients most appropriately treated in the IRF setting, compared to other settings.
As reflected in both the present and now proposed policies, we do not believe it is necessary that an IRF must treat patients only with the medical conditions listed in proposed § 412.23(b)(2)(iii) to distinguish it from other inpatient settings as an inpatient hospital setting that is primarily engaged in furnishing intensive rehabilitation services. Patients may have a variety of medical conditions that require rehabilitation treatment and the rehabilitation treatment may be furnished by a variety of rehabilitation programs. However, while an IRF is one of the settings that is available to furnish rehabilitation, it may not be the most appropriate setting to treat a medical condition not listed in proposed § 412.23(b)(2)(iii).
Patients with the medical conditions not listed in proposed § 412.23(b)(2)(iii) have always had, and will continue to have, rehabilitation programs in IRFs and other settings available to them that we believe can furnish the type of treatment that is commensurate to the need they have for rehabilitation. While being a prudent purchaser of health care services for Medicare beneficiaries is an important factor, the most important determination is which rehabilitation program is the most appropriate in relation to the patient's medical condition and rehabilitation needs, that is, the rehabilitation services furnished by the most appropriate rehabilitation program.
Although the previous analysis of impairment group and diagnoses data from the IRF-PAI suggests that IRFs are treating a patient population with more than 35 percent of cases with medical conditions other than those specified in proposed § 412.23(b)(2)(iii), this does not in and of itself provide evidence that the IRF is the most appropriate rehabilitation treatment modality for these patients. We welcome evidence or studies demonstrating that patients with medical conditions not included in proposed § 412.23(b)(2)(iii) generally require intensive inpatient rehabilitation and have better outcomes compared to other settings.
Although there may have been “medical advances” in rehabilitation or at least changes in practice patterns since the medical conditions listed at proposed § 412.23(b)(2)(iii) were developed, it is not clear that there is evidence supporting a clinical basis for these changes. Instead, in some cases, patients may have been transferred inappropriately from the inpatient setting which may have played a major role in changing practice patterns and in deciding which patients are admitted to IRFs. We note that the general trend has been the migration of care from the acute inpatient hospital setting to
Various commenters have suggested that we add cancer, cardiac, pulmonary, and pain to the list of conditions defining IRFs. We note that patients with cancer affecting the brain and spinal cord may be considered under the proposed clarification of the existing conditions to have non-traumatic brain or spinal cord injuries and can be counted in defining IRFs.
As has been commented on in the past, the result of adding cancer, cardiac, pulmonary, and pain conditions would be that almost all patients admitted to acute hospitals would qualify as being the types of patients that would be used to distinguish IRFs from acute care hospitals. Furthermore, we have seen no studies that demonstrate that patients from these categories have improved outcomes when cared for in IRFs as compared to other settings. We have reviewed studies that show that cardiac and pulmonary patients improve when treated in IRFs, but none of the studies provided evidence that the improvement required the unique characteristics of IRFs and compared the improvements of equivalent patients in other settings.
We continue to believe it is the total patient population that should determine whether a facility is classified as an IRF. This is the best indication that a facility (as a whole) is primarily engaged in furnishing intensive rehabilitation services. For a provider to be primarily engaged in furnishing intensive rehabilitation services implies that it is furnishing these services to its entire patient population. Therefore, we believe it is appropriate for Medicare to continue to use the entire IRF patient population as one of the criteria used to classify a facility as an IRF. This approach is part of CMS' existing policy that we plan to maintain.
In proposing 65 percent of an IRF's total patient population to determine compliance with proposed § 412.23(b)(2)(i) we still wanted to find methods of verification for the FIs that were not difficult operationally to automate. RAND's analysis of IRF compliance with existing requirements at § 412.23(b)(2) found that Medicare cases were highly predictive of the percentage of an IRF's total patient population with respect to the medical conditions specified in the regulation. We plan to instruct the FIs to initially utilize a presumptive eligibility test that uses Medicare data to assess compliance with proposed § 412.23(b)(2)(i). However, if an IRF appears to comply with proposed § 412.23(b)(2)(i) using only Medicare data, we may still consider other available information before making a final compliance determination. If the IRF does not comply with proposed § 412.23(b)(2)(i) based on the presumptive eligibility test that uses Medicare data, we would consider the IRF's total case-mix. In any case, we expect individual IRFs to notify their FI if the IRF believes that its Medicare population is not wholly representative of the total facility patient population. We believe that the compliance verification method described above offers Medicare adequate program protection and may reduce the burden on IRFs and the FIs related to enforcement of proposed § 412.23(b)(2)(i).
As noted in the May 16, 2003 proposed rule, we were concerned that some FIs inappropriately were using methods to verify compliance with the 75 percent rule. These inappropriate methods included incorrectly interpreting which patient diagnoses met the medical conditions listed in the 75 percent rule.
As in the present policies under the proposed IRF-PPS policies, Medicare will pay for the services an IRF furnishes to some patients who have a medical need for intensive inpatient rehabilitation services but do not have one of the medical conditions specified in proposed § 412.23(b)(2)(iii). The medical conditions specified in proposed § 412.23(b)(2)(iii) are used to determine whether a facility qualifies as an IRF and, thus, may be paid under the IRF PPS. However, the criteria for admission of any individual patient is based upon medical necessity; as a result, some patients with conditions listed in proposed § 412.23(b)(2)(iii) may still not meet the medical necessity criteria. Providers also have discretion over which patients are admitted, so we believe an IRF can manage its case-mix and, thus, ensure that its patient population during a cost reporting period would allow it to achieve compliance with proposed § 412.23(b)(2)(i).
We recognize, however, that one of the listed conditions in the existing regulation at § 412.23(b)(2), specifically polyarthritis, has been a source of confusion and is acknowledged by many not to represent any clearly defined clinical condition. We are proposing to remove this term from the list of 10 conditions and substitute instead 3 more clearly defined arthritis-related conditions, as specified above in the introduction to section II of this preamble, that comprise the range of diagnoses that the term “polyarthritis” was intended to encompass. This clarification was developed in part from information gathered from experts in rheumatology and rehabilitation as well as a review of the literature. We are proposing to adopt in § 412.23(b)(2)(iii) the other conditions currently listed in § 412.23(b)(2) because we believe these other conditions are the most appropriate conditions for treatment in an IRF. We are limiting the conditions to those that are sufficiently severe and in which intensive inpatient rehabilitation may be an appropriate modality of treatment. Although we acknowledge that “arthritis” may affect joints other than those specified (shoulders, elbows, hips and knees), such as those in the hands or spine, we do not believe these conditions require intensive rehabilitation care. Thus, we are limiting the focus to conditions that more commonly require intensive inpatient rehabilitation treatment. For this reason, conditions other than the types specified in this proposed rule are not included in the identified conditions to be listed in proposed § 412.23(b)(2)(iii). If a patient has a type of “arthritis” not included in the proposed conditions that we described earlier in this section then that patient would be included in the percent of cases that IRFs can admit which are not included in the proposed 65 percent of the proposed § 412.23(b)(2)(iii) conditions (assuming the care is medically necessary).
We acknowledge that the industry has interpreted polyarthritis to include hip and knee joint replacement cases and these should be included in the conditions counted in existing § 412.23(b)(2). Although some joint replacement cases are currently being treated in IRFs, we are not aware of any research that identifies the factors determining which patients are more appropriately treated in the intensive
We are also aware of proposals from the public that Medicare should count cases with lower functional status in RICs for joint replacement, cardiac, osteoarthritis, and pulmonary as cases that meet proposed § 412.23(b)(2)(iii). We are not proposing such a policy because the lower score of function on admission does not generally reflect a need for intensive inpatient rehabilitation services for patients with these medical conditions. Some patients may improve without rehabilitation, and others may not have the capability to improve even with rehabilitation.
We believe other conditions listed in proposed § 412.23(b)(2)(iii) also need to be clarified. The categories of brain and spinal cord injuries could appropriately be defined to include neoplasms of the brain, spinal cord, or meninges that result in substantial functional deficits as non-traumatic brain injuries and non-traumatic spinal cord injuries, since the course of rehabilitation for these conditions is very similar to the rehabilitation for other brain or spinal cord injuries. Although patients presenting with these conditions are currently paid under RIC 20, we believe that these patients can be counted towards the categories of cases listed in proposed § 412.23(b)(2)(iii) and invite comments of our interpretation.
Another category described in proposed § 412.23(b)(2)(iii) that requires clarification is major multiple trauma. Our contractors have noticed that some patients with relatively minor injuries at times are counted as having this condition. To clarify which patients should be counted, the IRF can determine if the acute care hospital service for a patient at the time of the initial injury was identified by diagnosis-related groups 484, 485, 486, or 487. We recognize that not all patients whose acute hospitalization was classified into DRG 484, 485, 486, or 487 will be admitted to an IRF immediately after the injury, because some may require a period of recuperation and healing before beginning the intensive inpatient rehabilitation care. We are soliciting comments regarding this methodology.
In this section of the proposed rule, we discuss the possible use of comorbidities to verify compliance with proposed § 412.23(b)(2)(i). Under the IRF PPS, we defined a comorbidity at § 412.602 as a specific patient condition that is secondary to the patient's principal diagnosis that is the primary reason for the inpatient rehabilitation stay.
Section II.C.1 below describes a proposed methodology in which cases other than those admitted with a principal diagnosis matching one or more of the 12 conditions specified in proposed § 412.23(b)(2)(iii) could be considered to satisfy the proposed 65 percent rule if certain additional criteria are met. Section II.C.2 below describes another alternative, in which a case that has a comorbidity that matches one of the conditions in proposed § 412.23(b)(2)(iii) could be considered to satisfy the proposed 65 percent rule only if the patient is admitted to an IRF for postoperative care immediately following a hip or knee replacement. We are soliciting comments on both of these proposed methodologies.
Under proposed § 412.23(b)(2)(i), we are proposing that starting with the effective date of the final rule and subject to the proposed phase-out provision discussed in section II.D., a case with a principal diagnosis that does not match one of the proposed 12 conditions be considered as meeting proposed § 412.23(b)(2)(i) if
The following explanation provides guidance regarding classifying the proposed “arthritis-related” conditions as comorbidities which may be counted as complying with proposed § 412.23(b)(2)(i). If the comorbidity is active, polyarticular rheumatoid arthritis, psoriatic arthritis, seronegative arthropathies, or systemic vasculidities with joint replacement, the patient must have undergone an appropriate, aggressive, and sustained course of outpatient therapy immediately preceding the inpatient rehabilitation or have experienced a systemic disease activation immediately before admission in order for the admission to be included in cases complying with proposed § 412.23(b)(2)(i). If the comorbidity is severe or advanced osteoarthritis involving three or more joints, the patient must have undergone an appropriate, aggressive, and sustained course of outpatient therapy immediately preceding the inpatient rehabilitation in order for the admission to be included in cases complying with proposed § 412.23(b)(2)(i).
The following provides clinical examples of diagnoses which indicate when a comorbidity would and would not be considered in determining compliance with the proposed 65 percent rule. These examples are for illustrative purposes only and are not meant to be the only scenarios where comorbidities would or would not be considered in determining compliance with the proposed 65 percent rule. Furthermore, these examples are not intended to represent, define, or establish clinical criteria for benefit coverage determinations.
(1) A patient who has severe arthritis in both shoulders and in his right knee has his left hip replaced with a non-cemented total hip prosthesis. Although before his joint replacement, he received an aggressive and sustained course of outpatient physical and occupational therapy, at the time of discharge from the acute care hospital, he still has considerable atrophy and weakness in his right quadriceps and hamstring muscles such that he is unable to support his entire weight on his right lower limb. He also has very restricted forward flexion in his right shoulder so that he is limited to 15 degrees of forward flexion. He has severe pain with weight-bearing through his upper limbs in both shoulders. Since after surgery, he can only have partial weight-bearing on his left lower limb, he requires
(2) A patient undergoes emergency coronary artery bypass graft surgery for sudden onset of ischemic chest pain (unstable angina) unresponsive to medical management. During the operation she suffers a stroke and wakes up after surgery unable to speak, swallow, or move her right arm and leg. Over the next several days, she regains some partial movements in her leg and arm with minimal speech return. At the time of discharge, she still has significant weakness of the right arm and leg such that she is unable to walk without a walker and therapist by her side and she is unable to make coordinated movements with her right arm to feed and dress herself. She also cannot swallow liquids and solid food without choking spells. She, therefore, requires inpatient rehabilitation of at least 3 hours daily of physical therapy to strengthen her leg and arm, occupational therapy to improve right arm and hand coordination for activities of daily living (that is, eating, dressing, transfer, and bathing), and speech therapy to learn how to swallow her meals without choking.
(1) A patient with a motor polyneuropathy who wears an ankle foot orthosis on the right lower limb elects to undergo a knee replacement due to severe osteoarthritis of the knee. Although the rehabilitation of the knee replacement may be complicated by the polyneuropathy, this patient would not be counted as satisfying the proposed change in § 412.23(b)(2)(i) because the comorbidity does not, by itself, require intensive inpatient rehabilitation.
(2) A patient had a stroke 5 years ago with residual weakness and lack of motor control in the left lower leg and that requires the use of a walking cane. She is involved in a car accident and undergoes surgery for a broken bone in her right arm (humerus) and a broken bone in her right ankle. At the time of discharge 2 days later, her dominant arm (right) is immobilized so she still has difficulty feeding herself and transferring from bed to chair. Also, she must learn to use a rolling walker because she cannot bear weight on her right leg and she can't reach the handle on her cane with her immobilized right arm. Although the rehabilitation of the right arm and right foot fracture may be complicated by the stroke, this patient would not be counted as satisfying the proposed change in § 412.23(b)(2)(i) because the comorbidity does not, by itself, require intensive inpatient rehabilitation. She has no caregiver (family or friend) support person at home so she is transferred to a skilled nursing facility where, over the next 5 days, she receives a daily physical therapy session to learn how to ambulate with a rolling walker and she receives a daily occupational therapy session to learn how to feed herself with her non-dominant left hand. She is then discharged home for follow-up with Outpatient Rehabilitation Therapy.
As stated in the May 16, 2003 proposed rule (68 FR 26794), our analysis indicated the largest group of patients treated in IRFs that was not considered as matching one of the 10 conditions in the existing 75 percent rule is patients with major joint replacements, specifically knee and hip replacements. Thus, as an alternative to the proposed methodology above, we are also proposing an approach that would only apply to patients admitted to an IRF after hip or knee replacements. Under this alternative approach, only admissions to an IRF that are post-operative hip or knee joint replacements cases would be considered to count towards meeting the proposed 65 percent rule if the case also had a comorbidity that matches one or more of the 12 proposed conditions in proposed § 412.23(b)(2)(iii). Specifically, under this method we would count a case as meeting the proposed 65 percent rule if the patient matched all of the following criteria:
• Was postoperative following one or more hip or knee joint replacements that immediately preceded the transfer to an IRF.
• Had a condition at time of admission to an IRF that was complicated by an active comorbidity specified in proposed § 412.23(b)(2)(iii).
• Had an active comorbidity that resulted in a decline in the patient's function beyond the decline generally observed for other patients in that impairment category.
• Had an active comorbidity that substantially complicated the patient's rehabilitation to the point that it would improve only with the intensive, multidisciplinary rehabilitation treatment that is unique to inpatient rehabilitation facilities and that could not be performed in another setting (for example, skilled nursing facility, inpatient hospital, home health, or outpatient).
In proposing these changes to the criteria for classifying hospitals as IRFs, our intent is to clarify the conditions typically requiring intensive inpatient rehabilitation therapy under the IRF PPS. These proposals do not represent an expansion of existing coverage criteria, but provide clear, clinically meaningful guidance on the conditions that are most appropriately treated in IRFs as distinguished from care furnished in other settings.
The policy changes proposed in this rule represent one of the next steps in an ongoing process since the May 16, 2003 proposed rule and the May 19, 2003 Town Hall meeting to identify potential policy changes to enhance the effectiveness of the IRF PPS. We are aware of the intricacies of implementing these changes to the IRF compliance criteria, both in terms of the time needed for providers to make any necessary adjustments to their operations and in the risk of unanticipated changes impacting providers, beneficiaries, and the Medicare program.
Comments received on the proposed change to the compliance percentage and on the proposed clinical criteria to determine compliance will be an important step in our planned ongoing assessment of the effect these proposed changes may have on—
• The IRF industry; and
• The Medicare beneficiaries who require rehabilitative care.
The final rule will reflect all relevant comments received and relevant data obtained through the comment period that may result in us adopting the proposed policies or adopting alternative policies.
As part of the next step in our ongoing assessment, during the 3-year period after the final rule is effective, we intend to closely review both claims and patient assessment data to examine trends in admissions and overall utilization in IRFs. These analyses will allow us to monitor and evaluate the effect the policies adopted in the final rule had on utilization and beneficiary access. Specifically, we will use these data to determine the effectiveness that the adopted final policies had in achieving the objectives stated in this proposed rule, and we will assess the need for any future policy development related to provider compliance. Also, we will review whether the adopted
In addition, we are encouraging rehabilitation professionals, the rehabilitation industry, researchers, academia, and other relevant sources to consider the 3-year period after the effective date of the final rule as an opportunity to conduct literature reviews, clinical studies, and other objective analyses so that we may be better informed about the situations in which patients require the intensive inpatient rehabilitation treatment available in an IRF compared to other settings. Furthermore, during this 3-year period, we plan to seek information and obtain data from rehabilitation experts, the rehabilitation industry, researchers, academia, and other relevant sources. The data we plan to obtain include clinical data, data from clinical outcomes analyses, and data from well-designed analytical studies specific to rehabilitative care. We believe that significant, objective data obtained from these sources would be informative as we deliberate whether changes to the clinical criteria and/or to the compliance percentage adopted in the final rule are justified.
However, no later than 3 years after the effective date of our final rule, in the absence of any significant, objective data as described above, we are proposing to change the classification criteria under proposed § 412.23(b)(2)(ii) as follows: In place of the proposed 65 percent compliance threshold discussed in section II.A., we would determine compliance by verifying that 75 percent of all inpatients have one of the 12 proposed conditions listed in proposed § 412.23(b)(2)(iii), and we would phase-out the use of the proposed comorbidity compliance policy discussed in section II.C. If, as we anticipate, the effective date of the final rule will apply to cost reporting periods that begin on or after January 1, 2004, this proposed change to the classification criteria, as noted below, would be effective for cost reporting periods beginning on or after January 1, 2007. Accordingly, the proposed changes specified in proposed § 412.23(b)(2)(ii) would occur automatically for cost reporting periods beginning on or after January 1, 2007 unless before that date we propose new criteria to determine compliance or validate the criteria as adopted in our final rule for identifying an IRF based on the data that CMS has obtained over the preceding 3 years including data from rehabilitation experts, the rehabilitation industry, researchers, academia, or other relevant sources.
As a future step in our ongoing assessment, we plan every 3 years after the initial 3 year assessment described above, to obtain objective updated clinical data from relevant sources and, if appropriate and justified, we may propose changes to the clinical criteria and/or the compliance percentage based on that updated data.
Except for new IRFs, § 412.23(b)(2) for freestanding IRFs and § 412.30 for IRF converted/expanded units would require the use of the most recent 12-month cost reporting period to determine if the IRF was compliant with existing § 412.23(b)(2). In addition, existing § 412.23(i) and § 412.25(f) state that the classification of a hospital or unit, respectively, is effective for the hospital's or unit's entire cost reporting period and that any changes in the classification of a hospital or unit are made only at the start of a cost reporting period. We believe that the application of both of these regulations has resulted in much confusion as to the data used to determine compliance with existing § 412.23(b)(2). For example, if an IRF's cost reporting period begins January 1, 2005 and ends December 31, 2005, this period would represent the most recent 12-month cost reporting period used to determine if the classification of the IRF is correct for the next cost reporting period that begins on January 1, 2006 in accordance with existing § 412.23(b)(2) and § 412.23(i) or § 412.25(f). However, the process of reviewing the data, making a determination of compliance with existing § 412.23(b)(2), and notifying the IRF of its non-compliance (and de-certification as an IRF) may take at least 3 to 4 months. Therefore, in order to make a determination of compliance and implement any changes before the start of the January 1, 2006 cost reporting period, data for only the first 8 to 9 months from the most recent 12-month cost reporting period would be available.
In order to have the proposed regulation more precisely reflect the necessary operational procedures of our FIs, we are proposing to change § 412.23(b)(2), § 412.30(c), and § 412.30(d)(2)(ii) to specify that data from the most recent, consecutive, and appropriate 12-month period of time be used to determine compliance with the proposed policies set forth in this proposed rule. Accordingly, using the example above, the last 3 to 4 months of data from the cost reporting period ending December 31, 2004, and the first 8 to 9 months of data from the cost reporting period ending December 31, 2005, could be used (for a total of 12-months of data from the most recent, consecutive, and appropriate period of time) to determine compliance with the proposed policies set forth in this proposed rule. These time periods may be different depending on the workload of the FIs and CMS Regional Offices. We believe that this change will give FIs and CMS Regional Offices the flexibility to make a determination and give the IRF sufficient time to adjust to any Medicare de-certification action. We are not proposing to make a similar change to the regulatory policies for new freestanding IRFs or new IRF units, because they can provide written certification for the first full 12-month cost reporting period after Medicare certification that they intend to meet the requirements of proposed § 412.23(b)(2).
The intent of this proposed change is to ensure that the patient data used to determine compliance with the requirements of proposed § 412.23(b)(2) are from the most recent, consecutive, and appropriate 12-month period of time. However, we recognize that 12 months of patient data for the initial cost reporting periods affected by these proposed changes will be from a period that is before the effective date of the final rule. Therefore, it will be necessary to institute a transition period for those cost reporting periods where the most recent 12-month period of time includes admissions that occur before the effective date of the final rule. Accordingly, to ensure that admissions that occur before the effective date of the final rule are not counted in an IRF's compliance percentage, the FIs and affected IRFs will be given the specific procedures regarding what time period the FIs will use to verify compliance during the transition from the existing requirements at § 412.23(b)(2) to the proposed changes specified in proposed § 412.23(b)(2).
We will take the necessary action to ensure that the proposed compliance policies are consistently enforced on IRFs across all FIs. We will issue instructions to the FIs and provide guidance to the clinical/medical FI personnel responsible for performing the compliance reviews to ensure that they use a method that consistently counts only cases with a diagnosis that both serves as the basis for the intensive rehabilitation services that the IRF
We believe that the changes we are proposing to § 412.23(b)(2) will help ensure the following:
• The incentives are appropriate for IRFs to admit patients that need and would benefit the most from intensive inpatient rehabilitation.
• The preservation of access to intensive inpatient rehabilitation services.
• IRFs provide distinct services and continue to be compensated with payment rates appropriate for their type of facility.
• The most prudent use of Medicare funds.
• More consistent implementation and enforcement by specifying more clearly what conditions are included in proposed § 412.23(b)(2).
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
Because of the large number of items of correspondence we normally receive on
In this proposed rule, we are proposing changes to the 75 percent rule for IRFs. Specifically, we are proposing that 65 percent of all patients treated in an IRF meet one of the proposed specified conditions, as discussed earlier in this preamble. We are also proposing to count comorbidities under certain conditions, as specified in this preamble, towards meeting the proposed 65 percent rule.
We have examined the impacts of this proposed rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA), (September 16, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more).
In this proposed rule, we are proposing changes to the 75 percent rule as described above. We estimate the savings to the Medicare program would be greater than $100 million. Therefore, this proposed rule would be considered a major rule.
The RFA requires agencies to analyze the economic impact of our regulations on small entities. If we determine that the regulation will impose a significant burden on a substantial number of small entities, we must examine options for reducing the burden. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and governmental agencies. Most hospitals are considered small entities, either by nonprofit status or by having receipts of $6 million to $29 million in any 1 year. (For details,
Section 1102(b) of the Act requires us to prepare a regulatory impact analysis for any rule that will have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area (MSA) and has fewer than 100 beds. This proposed rule would have a significant impact on the operations of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in an expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of at least $110 million. This proposed rule would not have a substantial effect on the governments mentioned, or on private sector costs.
We examined this proposed rule in accordance with Executive Order 13132 and determined that it would not have a substantial impact on the rights, roles, or responsibilities of State, local, or tribal governments.
For the reasons stated above, we have prepared an analysis under the RFA and section 1102(b) of the Act because we have determined that this proposed rule is a major rule and the proposed policies set forth in this proposed rule would have a significant impact on all IRFs (small entities and small rural hospitals).
One of the primary purposes of the regulatory impact analysis is to understand the effects policies would have on facilities. As we analyze the impacts of our proposed policies, we assess the extent to which these policies may unduly harm facilities. If there is evidence that we are unduly harming facilities, we make attempts to mitigate these effects, while ensuring that the proposed policies are fair and achieve the intended policy objectives. The intent of the policy objective of proposed § 412.23(b)(2) and of other policy criteria for IRFs is to ensure the distinctiveness of facilities providing intensive rehabilitative services in an inpatient setting. The distinctiveness of these facilities is what justifies paying them under a separate payment system
This policy objective is not new. However, the manner in which the existing regulations have been implemented and enforced may not have enabled CMS to accomplish these objectives to the extent we hoped. The policies set forth in this proposed rule are intended to accomplish these same policy objectives, clarify interpretational issues that have led to inconsistent implementation, and improve the extent to which IRFs can admit patients that would need and benefit from intensive inpatient rehabilitative services. Therefore, although the impacts of the proposed policy changes shown below illustrate that IRFs may experience reduced Medicare payments from these proposed policies, we believe the impacts would show a greater reduction in Medicare payments to IRFs if the existing policies were more effectively enforced.
We discuss below the Medicare impact of this proposed rule on IRFs. We used the following data and assumptions to estimate the impacts of the proposed policies set forth in this preamble.
• As stated in section I.D. of this proposed rule, we used patient assessment data from January to August 2002 to estimate compliance with the 75 percent rule in the May 16, 2003 proposed rule. We are using the same patient assessment data to construct the impact analysis set forth in this proposed rule.
• We used data described in the report titled Case Mix Certification Rule for Inpatient Rehabilitation Facilities”, published in May 2003, developed by the Rand Corporation. This report states, on page XIV, that 70 percent of all cases treated in IRFs are those of Medicare beneficiaries.
• In addition to Medicare patients, this proposed rule may have an effect on the 30 percent, or approximately 200,000, of the cases in IRFS that are non-Medicare. While there are numerous approaches a facility might take, and it is impossible to predict either the specific course of treatment or the financial impact, the facility could change both its Medicare and non-Medicare case mix in order to remain an IRF.
• We used regression results from page 25 of the Rand report to estimate that the percentage of total cases that meet the specified conditions for each IRF will be approximately 5 percent more than the percentage of Medicare cases that meet the specified conditions. However, other than an estimate of the size of the non-Medicare population in this proposed rule may affect, CMS does not have enough information to quantitatively estimate the impact to non-Medicare IRF cases, and encourages comments on this issue.
• 10 percent of the cases that did not meet the proposed criteria would meet the proposed criteria due to more accurate coding and removing the moratorium of the classification rule.
• 10 percent of the cases that did not meet the proposed criteria with the limited Medicare administrative data used in our analysis would meet the proposed criteria using more extensive medical record data.
• The diagnosis listed in Appendix A in the “Case Mix Certification Rule for Inpatient Rehabilitation Facilities” report, published in May 2003, developed by Rand identified cases that would meet the 75 percent rule. The report showed that a large number of cases with possible arthritis-related joint replacements did not meet the 75 percent rule. We believe that the proposed changes to the conditions related to arthritis in this proposed rule may increase the number of these cases that would count towards meeting the proposed 75 percent rule over those cases shown in the RAND report. However, it is difficult to determine the exact number of joint replacement cases that would meet the proposed criteria without extensive medical record data. Therefore, to estimate the impacts on the various classifications of IRFs shown in Chart 1, we chose the assumption that 35 percent of the joint replacement cases would meet the proposed clinical criteria as set forth in this proposed rule.
• We assume that a percentage of Medicare cases being admitted under the current practices would not be admitted to an IRF under the proposed criteria. We believe that these cases would be admitted or treated in extended hospital inpatient stays, outpatient departments, or other post acute care settings. We estimated that it would be equally possible that the cases not admitted to IRFs may be treated in inpatient hospitals, outpatient departments, or home health care settings. We found that approximately 80 percent of IRFs are units within a hospital complex and that approximately 60 percent of these hospital complexes include a skilled nursing facility. Accordingly, we estimated that skilled nursing facilities will have a higher possibility than other settings to absorb the cases not admitted to IRFs. Since long term care hospitals need to meet the average 25-day length of stay requirement and the average IRF length of stay is 14 Days, we estimated that long term care hospitals will absorb a smaller portion of the cases not admitted to IRFs.
Based on the above assumptions and the average payments for their respective settings, we have estimated that the average payment for these hospital inpatient, outpatient, and other post acute care settings to be approximately $7,000 per case. Thus, for Medicare patients, the difference between the IRF standardized payment per case ($12,525) and the estimated average per case amount for hospital inpatient, outpatient, and other post acute care settings ($7,000) results in a net savings to the Medicare program of approximately $5,525 per case.
Note that this result also depends on the assumption that all IRFs will continue to want to be classified as an IRF and admit those patients that will allow them to meet the proposed changes set forth in this proposed rule.
Dependent on the range of assumptions related to joint replacement cases described above, we project a proposed net savings to the Medicare program between $42 million and $161 million. Specifically, the estimated net savings would be $161 million if we assume that 20 percent of joint replacement cases meet the proposed criteria, $98 million if 35 percent of joint replacement cases meet the proposed criteria, and $42 million if 60 percent of joint replacement cases meet the proposed criteria. This net savings to Medicare would be a net loss of Medicare payments to IRFs or facilities that contain both an IRF and an alternative treatment facility. Some alternative treatment facilities, however, would experience an increase in Medicare payments if they experience a net increase in cases.
To determine the estimated effects of implementing the policies in this proposed rule, we have developed Chart 1 to show the estimated impact on the
• The first column, Facility Classification, identifies the type of facility. Where data were not available to classify an IRF into a category, the IRF was identified as “missing” in the first column.
• The second column identifies the number of facilities for each classification type.
• The third column lists the estimated number of Medicare cases admitted to IRFs under the existing policies. We estimated the number of Medicare cases from 8 months worth of post-IRF PPS data (the available data at the time the analysis was done) to represent an annual number of Medicare cases.
• The fourth column, Ratio of Medicare Cases Not Admitted, represents an estimate of the percentage of Medicare cases that would no longer be treated in an IRF due to the proposed policies set forth in this proposed rule.
• The fifth column represents the Ratio of All Setting Cost/Savings to IRF Medicare Payments. To estimate this amount we divide the All Setting Cost/Saving in Millions in column six by the Current IRF Medicare Payments in Millions in column eight.
• The sixth column, All Setting Cost/Saving in Millions, indicates the savings impact to the Medicare program. To estimate the savings, we consider that some Medicare cases would possibly be treated in other settings and those settings would be paid accordingly. The following steps illustrate how we estimate this amount.
• Step 1—First we estimate the number of Medicare cases that may not be admitted to IRFs by multiplying the percentage in column four, Ratio of Medicare Cases Not Admitted, by the Total Medicare Cases reflected in column three.
• Step 2—We then take the number of cases calculated in the Step 1 and multiply these cases by $12,525 (the standardized FY 2004 payment amount) to determine the estimated Medicare impact to IRFs.
• Step 3—Then we estimate the amount of Medicare payments that these cases may generate in other settings. Specifically, we multiply $7,000 by the number of Medicare cases estimate in the Step 1 (the number of Medicare cases that may not be admitted to IRFs).
• Step 4—Then we subtract the total amount calculated in Step 3 by the total amount calculated in Step 2 in order to estimate the total savings to the Medicare program.
• The seventh column, IRF Medicare Payment Impact in Millions, shows the estimated Medicare impact specific to IRFs. We calculate this estimate by multiplying the percentage of Medicare cases that will not be admitted shown in column four by the Total Medicare Cases shown in Column three and determine the number of Medicare cases that will not be admitted to IRFs. We then take the total number of Medicare cases that will not be admitted to IRFs and multiply it by $12,525 to estimate column seven, IRF Medicare Payment Impact in Millions.
• The eighth column, Current IRF Medicare Payments in Millions, is the number of Medicare cases reflected in column three multiplied by $12,525.
• The ninth column, Projected IRF Medicare Payments in Millions, reflects the estimate of the total Medicare payments IRFs may receive as a result of the policies set forth in this proposed rule. This amount is calculated by subtracting the estimate of the IRF Medicare Payment Impact in Millions (column seven) from the estimate of the Current IRF Medicare Payments in Millions (column eight).
Chart 1 breaks down the Medicare impacts into many categories that should serve to inform the public and interested parties of the different types of impacts of the changes in this proposed rule. As column seven in Chart 1 shows, IRFs are expected to experience a reduction in Medicare payments from the proposed rule of approximately $223 million, with a net savings to Medicare of approximately $98 million for all Medicare providers. Applying the different assumptions regarding qualifying joint replacement cases yields a Medicare impact range of $42 million (60 percent qualifying) to $161 million (20 percent qualifying).
For the purposes of the RFA analysis, the next few paragraphs discuss IRF impacts in more detail, and regulatory alternatives considered by CMS to explore the impact of different options on IRFs. There are distributional impacts among various IRFs due to existing levels of compliance. The expected Medicare savings is due to the percentage of patients admitted to IRFs that fall outside the identified conditions in relation to what IRFs would be paid in FY 2004 for all Medicare discharges assuming status quo (varying levels of compliance to the existing 75 percent rule). As we previously stated in this proposed rule, although the impacts of the proposed policy changes illustrate IRFs may experience a reduction in payments, we believe the impacts would show a greater reduction in payments to IRFs if the existing policies were more effectively enforced. Further, we believe this reduction in Medicare payments is appropriate given the existing policy objectives described above.
Because this rule is likely to have a significant impact on all IRFs based on the RFA guidelines, we will discuss the alternative changes to the 75 percent rule that we considered.
One option (Option A) would have been to consider all cases in rehabilitation impairment categories (RICs) 1-19 and 21 as cases that could be counted towards the 75 percent rule. This would leave only miscellaneous cases (RIC 20) as cases that would not be considered to satisfy the requirements in proposed § 412.23(b)(2). The result would have been that all existing IRFs would not only meet the standard, but that they would have almost no restrictions on the type of cases that they would admit. The intent of the policy specified in proposed § 412.23(b)(2) is to ensure that IRFs are unique compared to other hospitals in that they provide intensive rehabilitative services in an inpatient setting. The uniqueness of these facilities justifies paying them under a separate payment system rather than paying them with the same payment system for acute care inpatient PPS. Thus, we believe it is crucial to Medicare to maintain criteria ensuring that only facilities providing intensive rehabilitation are identified as IRFs. In addition, we believe that it is imperative to identify conditions that would typically require intensive inpatient rehabilitation in IRFs because rehabilitation, in general, can be delivered in a variety of other settings.
We have estimated that the average occupancy rate of all IRFs is approximately 70 percent. If we were to implement option A, we believe that IRFs with available capacity would increase their occupancy rate because, as stated above, IRFs would have almost no restrictions on the type of cases that they would admit. The following estimated effects of implementing option A on the Medicare program assumes that IRFs would increase their Medicare cases using the present ratio of 70 percent Medicare beneficiaries to total patients. Thus, we estimate that in the first year of implementing option A it would cause an increase in IRF Medicare payments, and would cost the Medicare program, an additional $2.7 billion dollars if occupancy increased to 100 percent, $1.9 billion if occupancy increased to 90 percent, and $1.2 billion if occupancy increased to 80 percent. This range of additional costs to the Medicare program represents up to 50 percent more than the current total IRF Medicare expenditures.
A variant of option A is option B which would add joint replacements, cardiac, pulmonary, pain, and cancer patients to the list of conditions, as discussed previously in this preamble in section II.A., which would also result in a significant impact on Medicare
Another option (Option C) would be to retain the compliance percentage requirement at 75 percent, rather than lowering it to 65 percent, but recognize the comorbidities as proposed in section II.C. of this proposed rule. This option is similar to enforcement of the current policy and, thus, would further reduce Medicare payments to all IRFs over the policies proposed in this rule. Specifically, total estimated savings to Medicare from all IRFs would be increased from the range of $42 to $161 million (under the proposed policies) to the range of $154 to $357 million if we proposed 75 percent.
Another option (Option D) that we considered, similar to option C, was to allow a comorbidity to count only for hip and joint replacement patients as discussed previously in section II.C. of this proposed rule. If the compliance requirement were to be held at 75 percent along with this policy, the estimated reduction in Medicare payments for IRFs and savings to Medicare would be approximately the same as in option C.
We believe that the proposed changes to the clinical criteria are adequate to make the distinction of the intensive inpatient rehabilitation provided in IRFs from rehabilitation services provided in other settings, unlike the first alternative described above. In addition, while the proposed changes to the clinical criteria and the reduction in the compliance percentage to 65 percent do have a significant impact on Medicare payments to IRFs ($42 to $161 million), they are not as significant as the impact of the other alternatives described above. It is also important to note, as previously mentioned in section V.G., that approximately 80 percent of IRFs are units within a hospital complex and that approximately 60 percent of these hospital complexes include a skilled nursing facility. Thus, a majority of hospital complexes (including rural hospitals) that maintain an IRF unit may experience an increase in Medicare payments from the proposed changes in this proposed rule in other settings within the complex.
In accordance with the provisions of Executive Order 12866, this proposed rule was reviewed by the Office of Management and Budget (OMB).
Administrative practice and procedure, Health facilities, Medicare, Puerto Rico, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV, part 412 as set forth below:
1. The authority citation for part 412 continues to read as follows:
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
2. In § 412.23, paragraph (b)(2) is revised to read as follows:
(b) * * *
(2) Except in the case of a newly participating hospital seeking classification under this paragraph as a rehabilitation hospital for its first 12-month cost reporting period, as described in paragraph (b)(8) of this section, a hospital must show that during its most recent, consecutive, and appropriate 12-month time period (as defined by CMS or the fiscal intermediary), it served an inpatient population that meets the criteria under paragraph (b)(2)(i) or (b)(2)(ii) of this section.
(i) For cost reporting periods beginning on or after January 1, 2004 and before January 1, 2007, the hospital has served an inpatient population of whom at least 65 percent required intensive rehabilitative services for treatment of one or more of the conditions specified at paragraph (b)(2)(iii) of this section. A patient with a comorbidity, as defined at § 412.602, may be included in the inpatient population that counts towards the required 65 percent if—
(A) The patient is admitted for inpatient rehabilitation for a condition that is not one of the conditions specified at paragraph (b)(2)(iii) of this section;
(B) The patient has a comorbidity that falls in one of the conditions specified at paragraph (b)(2)(iii) of this section; and
(C) The comorbidity has caused significant functional ability decline in the individual such that, even in the absence of the admitting condition, the individual would require the intensive rehabilitation treatment that is unique to inpatient rehabilitation facilities paid under subpart P of this part and which cannot be appropriately performed in another care setting covered under this title.
(ii) For cost reporting periods beginning on or after January 1, 2007, the hospital has served an inpatient population of whom at least 75 percent required intensive rehabilitative services for treatment of one or more of the conditions specified at paragraph (b)(2)(iii) of this section.
(iii) List of conditions.
(A) Stroke.
(B) Spinal cord injury.
(C) Congenital deformity.
(D) Amputation.
(E) Major multiple trauma.
(F) Fracture of femur (hip fracture).
(G) Brain injury.
(H) Neurological disorders, including multiple sclerosis, motor neuron diseases, polyneuropathy, muscular dystrophy, and Parkinson's disease.
(I) Burns.
(J) Active, polyarticular rheumatoid arthritis, psoriatic arthritis, and seronegative arthropathies resulting in significant functional impairment of ambulation and other activities of daily living, which have not improved after an appropriate, aggressive, and sustained course of outpatient therapy services or services in other less intensive rehabilitation settings immediately preceding the inpatient rehabilitation admission or which result from a systemic disease activation immediately before admission, but have the potential to improve with more intensive rehabilitation.
(K) Systemic vasculidities with joint inflammation, resulting in significant functional impairment of ambulation and other activities of daily living, which have not improved after an appropriate, aggressive, and sustained course of outpatient therapy services or services in other less intensive rehabilitation settings immediately preceding the inpatient rehabilitation admission or which result from a systemic disease activation immediately before admission, but have the potential to improve with more intensive rehabilitation.
(L) Severe or advanced osteoarthritis (osteoarthrosis or degenerative joint disease) involving three or more major joints (elbow, shoulders, hips, or knees) with joint deformity and substantial loss of range of motion, atrophy, significant
3. Section 412.30 is amended by—
A. Revising paragraph (c).
B. Revising paragraph (d)(2)(ii).
The revisions read as follows:
(c)
(d) * * *
(2) * * *
(ii) A hospital may increase the size of its excluded rehabilitation unit through the conversion of existing bed capacity only if it shows that, for the hospital's most recent, consecutive, and appropriate 12-month time period (as defined by CMS or the fiscal intermediary), the beds have been used to treat an inpatient population meeting the requirements of § 412.23(b)(2).