Animal and Plant Health Inspection Service
Commodity Credit Corporation
Forest Service
Natural Resources Conservation Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Technology Administration
Federal Energy Regulatory Commission
Southeastern Power Administration
Presidential Documents
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
Transportation Security Administration
Land Management Bureau
Minerals Management Service
Reclamation Bureau
Justice Programs Office
Veterans Employment and Training Service
Committee for the Implementation of Textile Agreements
Federal Aviation Administration
Surface Transportation Board
Community Development Financial Institutions Fund
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the Oriental fruit fly regulations by quarantining a portion of Orange County, CA, and restricting the interstate movement of regulated articles from that area. This action is necessary on an emergency basis to prevent the spread of the Oriental fruit fly into noninfested areas of the United States. We are also amending the regulations to provide for the use of spinosad bait spray as an alternative treatment for premises. This new treatment option will provide an alternative to the use of malathion bait spray for premises that produce regulated articles within the quarantined area but outside the infested core area.
This interim rule was effective September 14, 2004. We will consider all comments that we receive on or before November 19, 2004.
You may submit comments by any of the following methods:
• EDOCKET: Go to
• Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 02-096-3, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 02-096-3.
• E-mail: Address your comment to
• Agency Web Site: Go to
• Federal eRulemaking Portal: Go to
Mr. Wayne D. Burnett, National Fruit Fly Program Manager, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1236; (301) 734-4387.
The Oriental fruit fly,
The Oriental fruit fly regulations, contained in 7 CFR 301.93 through 301.93-10 (referred to below as the regulations), were established to prevent the spread of the Oriental fruit fly into noninfested areas of the United States.
Section 301.93-3(a) provides that the Administrator will list as a quarantined area each State, or portion of a State, in which the Oriental fruit fly has been found by an inspector, in which the Administrator has reason to believe that the Oriental fruit fly is present, or that the Administrator considers necessary to regulate because of its proximity to the Oriental fruit fly or its inseparability for quarantine purposes from localities in which the Oriental fruit fly has been found. The regulations impose restrictions on the interstate movement of regulated articles from the quarantined areas. Quarantined areas are listed in § 301.93-3(c).
Less than an entire State will be designated as a quarantined area only if the Administrator determines that: (1) The State has adopted and is enforcing restrictions on the interstate movement of the regulated articles that are substantially the same as those imposed on the interstate movement of regulated articles and (2) the designation of less than the entire State as a quarantined area will prevent the interstate spread of the Oriental fruit fly.
Recent trapping surveys by inspectors of California State and county agencies and by inspectors of the Animal and Plant Health Inspection Service reveal that a portion of Orange County, CA, is infested with the Oriental fruit fly.
State agencies in California have begun an intensive Oriental fruit fly eradication program in the quarantined areas of Orange County. Also, California has taken action to restrict the intrastate movement of regulated articles from the quarantined area.
Accordingly, to prevent the spread of the Oriental fruit fly to noninfested areas of the United States, we are amending the regulations in § 301.93-3 by designating a portion of Orange County, CA, as a quarantined area for the Oriental fruit fly. The quarantined area is described in the rule portion of this document.
In an interim rule effective on January 13, 2004, and published in the
Section 301.93-10 of the regulations lists treatments for regulated articles. Regulated articles treated in accordance with this section may be moved interstate from a quarantined area to any destination. Section 301.93-10 contains treatments for specified fruits, treatments for soil within the treeline of plants producing specified fruits, and treatments for premises (fields, groves, or areas) that are within a quarantined area but outside the infested core area.
Under § 301.93-10(b), premises that are located within the quarantined area but outside the infested core area, and that produce regulated articles, must receive regular treatments with malathion bait spray. We are amending § 301.93-10(b) to include a new alternative chemical treatment for premises. The new chemical treatment is a spinosad bait spray. Without spinosad bait spray, the only treatment made available by the regulations for premises has been malathion bait spray. Spinosad bait spray must be applied by aircraft or ground equipment at a rate of 0.01 oz of a USDA-approved spinosad formulation and 48 oz of protein hydrolysate per acre. For ground applications, the mixture may be diluted with water to improve coverage. The spinosad bait spray provisions we are adding to the regulations in § 301.93-10(b) are the same as those currently found in the Mexican fruit fly regulations in § 301.64-10(c), the West Indian fruit fly regulations in § 301.98-10(b), and the sapote fruit fly regulations in § 301.99-10(c).
This rulemaking is necessary on an emergency basis to prevent the Oriental fruit fly from spreading to noninfested areas of the United States and to provide an alternative treatment for premises. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (
This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
This rule amends the Oriental fruit fly regulations by adding a portion of Orange County, CA, to the list of quarantined areas. The regulations restrict the interstate movement of regulated articles from a quarantined area. This rule also amends the regulations by including a new alternative chemical treatment for premises located within the quarantined area but outside the infested core area.
The quarantined area encompasses a relatively small area of Orange County, CA, covering approximately 116 square miles. County records indicated there are 9 growers, 4 nurseries, 24 mobile vendors, 3 farmers markets, 8 fruit sellers, 1 distributor, 2 haulers, 2 processors, 1 swap meet, and 34 yard and tree maintenance firms within the quarantined area that may be affected by this rule.
We expect that any small entities located within the quarantined area that sell regulated articles do so primarily for local intrastate, not interstate, movement, so the effect, if any, of this rule on those entities appears to be minimal. The effect on any small entities that may move regulated articles interstate will be minimized by the availability of various treatments that, in most cases, will allow these small entities to move regulated articles interstate with very little additional cost.
Currently, growers must treat premises that are within the quarantined area but outside the infested core area and that produce regulated articles with regular treatments of malathion bait spray. This rule provides for the use of spinosad bait spray for these premises as an alternative to malathion. Spinosad bait spray has been added to the list of approved treatment methods to help meet the requirements of organic growers. Growers and nurseries in regulated areas that choose to use spinosad bait spray may be affected by this change, as the costs of applying spinosad bait spray are greater than the costs of applying malathion bait spray. No growers or nurseries will be required to use spinosad bait spray as a result of its addition to the regulations.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
An environmental assessment and finding of no significant impact have been prepared for this interim rule. The site-specific environmental assessment provides a basis for the conclusion that the implementation of integrated pest management to eradicate the Oriental fruit fly will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
The environmental assessment and finding of no significant impact are available for viewing on the Internet at
This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
(c) The areas described below are designated as quarantined areas:
(b)
Commodity Credit Corporation and the Natural Resources Conservation Service, USDA.
Interim final rule; extension of public comment period.
The Conservation Security Program (CSP) is authorized by Title XII, Chapter 2, Subchapter A, of the Food Security Act of 1985, as amended by the Farm Security and Rural Investment Act of 2002. The Natural Resources Conservation Service (NRCS) published an Interim Final Rule for CSP on June 21, 2004, (69 FR 34502), with a comment period expiring September 20, 2004. By this document, NRCS is extending the period during which it will accept public comment on the Interim Final Rule for CSP to October 5, 2004. This extension is to give the public additional time to comment on key issues that have been raised regarding the implementation of the program.
Comments must be postmarked by midnight October 5, 2004.
Send comments in writing, by mail, to Financial Assistance
The Interim Final Rule may also be accessed via the Internet through the NRCS homepage, at
Craig Derickson, Conservation Security Program Manager, Financial Assistance Programs Division, NRCS, P.O. Box 2890, Washington, DC 20013-2890, telephone: (202) 720-1845; fax: (202) 720-4265. Submit e-mail to:
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to all Dassault Model Fan Jet Falcon series airplanes and Model Mystere-Falcon 20 series airplanes, that requires inspecting and testing for fatigue cracking due to stress corrosion in the vertical posts of the window frames in the flight compartment. This action is necessary to prevent fatigue cracking of the window frames, which could result in rapid depressurization of the fuselage and consequent reduced structural integrity of the airplane. This action is intended to address the identified unsafe condition.
Effective October 25, 2004.
The service information referenced in this AD may be obtained from Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1137; fax (425) 227-1149.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Dassault Model Fan Jet Falcon series airplanes and Model Mystere-Falcon 20 series airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.
We have changed paragraphs (a)(1) and (a)(2) of this final rule to specify that the actions shall be done in accordance with a method approved by the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or the Direction Ge
The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
The FAA estimates that 220 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $57,200, or $260 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 adopted herein 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (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) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
To prevent fatigue cracking of the window frames in the flight compartment, which could result in rapid depressurization of the fuselage and consequent reduced structural integrity of the airplane, accomplish the following:
(a) Do an inspection and test for stress corrosion and cracking as specified in paragraphs (a)(1) and (a)(2) of this AD, at the applicable time specified in paragraph (b) of this AD.
(1) For airplanes that have not accomplished the actions specified in Dassault Service Bulletin FJF-701, dated March 25, 1986; or Revision 1 dated October 22, 1987: Do a detailed inspection (using an endoscope) to detect stress corrosion and cracking of the window frames in the flight compartment, including the pilot, co-pilot, and front windows. Do the inspection in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate; or the Direction Ge
(2) For all airplanes: Do an ultrasonic test for cracking in the posts of window frames 2, 5, 7, 8, and 10. Do the test in accordance with a method approved by either the Manager, International Branch, ANM-116; or the DGAC (or its delegated agent). Dassault Aviation Work Card 53-30-07, titled “Non-Destructive Ultrasonic Testing of Vertical Posts on Screw-Mounted Windows,” of the Dassault Aviation Fan Jet Falcon Maintenance Manual is one approved method.
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) Do the inspection and test required by paragraph (a) of this AD, at the times specified in paragraph (b)(1) or (b)(2) of this AD, as applicable.
(1) For airplanes having 35 or more years since the date of issuance of the original Airworthiness Certificate or the date of issuance of the original Export Certificate of Airworthiness, whichever is first; or having accumulated 20,000 or more total flight cycles as of the effective date of this AD: Within 7 months after the effective date of this AD.
(2) For airplanes not identified in paragraph (b)(1) of this AD: Within 25 months or 2,500 flight cycles after the effective date of this AD, whichever is first.
(c) If any stress corrosion or cracking is found during any inspection or test required by paragraph (a) of this AD: Before further flight, repair per a method approved by either the Manager, International Branch, ANM-116; or the DGAC (or its delegated agent).
(d) At the applicable time specified in paragraph (d)(1) or (d)(2) of this AD: Submit a report of the findings (positive and negative) of the inspection required by paragraph (a) of this AD to: Dassault Falcon Jet, Attn: Service Engineering/Falcon 20, fax: (201) 541-4706, at the applicable time specified in paragraph (d)(1) or (d)(2) of this AD. The report must include the airplane serial number, number of landings, number of flight hours, airplane age, and the number and length of any cracks found. Submission of the Charts of Records (part of French airworthiness directive 2001-600-028(B), dated December 12, 2001), is an acceptable method of complying with this requirement. Under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(1) If the inspection was done after the effective date of this AD: Submit the report within 5 days after the inspection.
(2) If the inspection was done prior to the effective date of this AD: Submit the report within 5 days after the effective date of this AD.
(e) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in French airworthiness directive 2001-600-028(B), dated December 12, 2001.
(f) This amendment becomes effective on October 25, 2004.
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 20, 2004. 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 20, 2004.
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 National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
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.
Environmental Protection Agency (EPA).
Direct final rule; withdrawal.
On August 5, 2004 EPA published a direct final rule (69 FR 47366) approving, and an accompanying proposed rule (69 FR 47399) proposing to approve a revision submitted by the State of Colorado on July 31, 2002, for the purpose of redesignating the Lamar, Colorado and Steamboat Springs, Colorado areas from nonattainment to attainment for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
The direct final rule published at 69 FR 47366 is withdrawn as of September 20, 2004.
Libby Faulk, Air Quality Planning and Management Unit, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202. Telephone: (303) 312-6083. E-mail address:
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Particulate Matter.
Air pollution control.
Environmental Protection Agency (EPA).
Direct final rule.
The EPA is approving revisions to the State Implementation Plan (SIP) submitted by the North Carolina Department of Environment and Natural Resources (NCDENR) on June 4, 2004. This SIP revision satisfies the requirement of the Clean Air Act (CAA) as amended in 1990 for the second 10-year updates of both the Raleigh/Durham area (Durham and Wake Counties, and a portion of Granville County) and the Greensboro/Winston-Salem/High Point area (Davidson, Forsyth, and Guilford Counties, and a portion of Davie County) 1-hour ozone maintenance plans.
This direct final rule is effective November 19, 2004, without further notice, unless EPA receives adverse comment by October 20, 2004. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Regional Material in EDocket (RME) ID No. R04-OAR-2004-NC-0002, by one of the following methods:
1. Federal eRulemaking Portal:
2. Agency Web site:
3. E-mail:
4. Fax: 404-562-9019
5. Mail: “R04-OAR-2004-NC-0002”, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
6. Hand Delivery or Courier. Deliver your comments to: Rosymar De La Torre Colo
Rosymar De La Torre Colo
In addition to the publicly available docket materials available for inspection electronically in Regional Material in EDocket, and the hard copy available at the Regional Office, which are identified in the
The air quality maintenance plan is a requirement of the 1990 CAA for nonattainment areas that come into compliance with the national ambient air quality standard (NAAQS). The Raleigh/Durham area (Durham and Wake Counties and a portion of Granville County) was not in compliance with the 1-hour ozone standard until air quality measurements from 1990 to 1992 showed that the area had attained the standard. The State subsequently requested that EPA redesignate these counties as attainment for the 1-hour ozone standard. Included with this request was a 10-year air quality maintenance plan covering the years 1993 through 2004. EPA found that this plan was developed in accordance with the appropriate guidelines and published approval of the plan on April 18, 1994, with an effective date of June 17, 1994 (59 FR 18300).
The Greensboro/Winston-Salem/High Point area (Davidson, Forsyth, and Guilford Counties and a portion of Davie County) was not in compliance with the 1-hour ozone standard until air quality measurements from 1990 to 1992 showed that the area had attained the standard. The State subsequently requested that EPA redesignate these counties as attainment for the 1-hour ozone standard. Included with this request was a 10-year air quality maintenance plan covering the years 1993 through 2004. EPA found that this plan was developed in accordance with the appropriate guidelines and published approval of the plan on September 9, 1993, with an effective date of November 8, 1993 (58 FR 47391).
On June 4, 2004, the NCDENR submitted revisions to North Carolina's SIP to provide a 10-year update to the maintenance plans as required by section 175A(b) of the CAA as amended in 1990. The underlying strategy of the maintenance plan is to maintain compliance with the 1-hour ozone standard by assuring that current and future emissions of Volatile Organic Compounds (VOC) and Nitrogen Oxides (NO
This SIP revision satisfies the requirement of the CAA for the second 10-year updates for the Raleigh/Durham area and Greensboro/Winston-Salem/High Point area 1-hour ozone maintenance plans. Changes to the current maintenance plans include revisions to the emissions inventory for both on-road and non-road mobile sources, reflecting improved methodologies contained in the MOBILE6 and NONROAD emission models. New emissions data for the year 2000 and the projected years (2004, 2007, 2010, 2012 and 2015) have been calculated.
Maintenance plans and other control strategy SIPs create motor vehicle emission budgets (MVEBs) for criteria pollutants and/or their precursors to address pollution from cars and trucks. The MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish the MVEBs in the SIP and how to revise the MVEBs.
Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (
Specific MVEBs are defined for both VOC and NO
The MVEBs have been defined for each county for 2004, 2007, 2010, 2012 and 2015 in the State's submittal. The values for a given year are equal to the on-road mobile source projected level of emissions for that year plus an adjustment. The adjustments are allocations from the safety margins, which account for uncertainty in the projections. They are available because of significant reductions of VOC and NO
Under 40 CFR 93.101, the term safety margin is the difference between the attainment level (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the air quality health standard. The safety margin credit can be allocated to the transportation sector, although the total emission level must stay below the attainment level.
EPA is approving the second 10-year updates for the Raleigh/Durham and Greensboro/Winston-Salem/High Point 1-hour ozone maintenance plans. In this action EPA is approving the MVEBs for 2004, 2007, 2010, 2012, and 2015. The MVEBs for 2007, 2010, 2012, and 2015 for the Raleigh/Durham and Greensboro/Winston-Salem/High Point areas were previously found adequate for transportation conformity purposes. This finding of adequacy was announced in a letter to the State of North Carolina dated June 23, 2004 and was subsequently announced in the
The EPA is publishing this rule without prior proposal because the
If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 19, 2004, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 19, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42.U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maryland. This revision pertains to changes in Maryland's regulations for new source permitting for major sources of volatile organic compound (VOC) and nitrogen oxides (NO
This final rule is effective on October 20, 2004.
Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue, NW., Room B108, Washington, DC 20460; and the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.
Christopher Cripps, (215) 814-2179, or by e-mail at
On June 14, 2004, (69 FR 32928), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of a SIP revision that pertains to changes in Maryland's regulations for new source permitting for major sources of VOC and NO
On December 1, 2003, the Maryland Department of the Environment submitted a revision (MD SIP Revision Number 03-08) to the Maryland State Implementation Plan (SIP) for the Washington, DC ozone nonattainment area. This revision amends the approved Maryland SIP to: revise the definition of major stationary source in the Code of Maryland Regulations (COMAR) 26.11.17.01B(13); incorporate changes in the general provisions found in COMAR 26.11.17.03B(3), which require proposed new major stationary sources to obtain emission reductions, or offsets, of the same pollutant from existing sources in the area of the proposed source at a ratio of 1.3 tons of existing emissions for every 1 ton of proposed emissions; and change the threshold of applicability of Maryland's NO
Other specific requirements of these changes to COMAR 26.11.17.01B(13), COMAR 26.11.17.03B(3) and COMAR 26.11.09.08 and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.
EPA is approving changes to COMAR 26.11.17.01B(13), COMAR 26.11.17.03B(3) and COMAR 26.11.09.08 submitted by the Maryland Department of the Environment on December 1, 2003 as a revision to the Maryland SIP.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 19, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve Maryland's December 1, 2003 SIP revision pertaining to changes to Maryland's regulations for permitting of major sources of VOC and NO
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(191) Revision to the Maryland Regulations pertaining to changes to control of fuel-burning equipment, stationary internal combustion engines and certain fuel-burning installations and to changes to requirements for major new sources and modifications submitted on December 1, 2003 by the Maryland Department of the Environment:
(i) Incorporation by reference.
(A) Letter of December 1, 2003 from the Maryland Department of the Environment transmitting changes to control of fuel-burning equipment, stationary internal combustion engines and certain fuel-burning installations and to changes to requirements for major new sources and modifications in Maryland's air quality regulations, Code of Maryland Administrative Regulations (COMAR).
(B) Revisions to COMAR 26.11.09.08A(1), pertaining to control of NO
(
(
(
(C) Revisions to COMAR 26.11.17.01B(13) pertaining to requirements for major new sources and modifications adopted by the Secretary of the Environment on October 21, 2003, and effective on November 24, 2003.
(
(
(
(D) Revisions to COMAR 26.11.17.03B pertaining to requirements for major new sources and modifications adopted by the Secretary of the Environment on October 21, 2003, and effective on November 24, 2003.
(
(
(
(ii) Additional Material—Remainder of the State submittal pertaining to the revisions listed in paragraph (c)(191)(i) of this section.
Environmental Protection Agency (EPA).
Final rule.
The EPA is finalizing approval of the June 27, 2003, and June 26, 2003, revisions to the State implementation plans (SIPs) of the Commonwealth of Kentucky and the State of Indiana to revise the 2012 motor vehicle emission budgets (MVEBs) using MOBILE6 for the Louisville 1-hour ozone maintenance area. The Louisville maintenance area includes Jefferson County, Kentucky and portions of Bullitt and Oldham Counties in Kentucky; and Clark and Floyd counties in Indiana.
This rule will be effective October 20, 2004.
Copies of Kentucky's submittal are available at the following address for inspection during normal business hours:
Environmental Protection Agency, Region 4, Air Planning Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
Copies of Indiana's submittal are available at the following address for inspection during normal business hours: Environmental Protection Agency Region 5, Air Programs Branch, Air and Radiation Division, 77 W. Jackson Blvd., Chicago, Illinois 60604-3590.
The interested persons wanting to examine these documents should make an appointment at least 24 hours before the visiting day.
In this final rulemaking, EPA is approving revisions to the Kentucky and Indiana SIPs submitted by the Commonwealth of Kentucky, through the Kentucky Department of Air Quality (KDAQ), on June 27, 2003, and submitted by the State of Indiana, through the Indiana Department of Environmental Management (IDEM) on June 26, 2003. KDAQ made this submittal on behalf of the Louisville Metro Air Pollution Control District (“District”). The States” revisions update the 2012 MVEBs and projected mobile source emissions using MOBILE6 for the Kentucky and Indiana portions of the Louisville 1-hour ozone maintenance area.
In this action, EPA is approving Kentucky's and Indiana's MVEBs. In two rules published August 7, 2003 (68 FR 47059 and 68 FR 47060), EPA found these MVEBs adequate for transportation conformity purposes. The “Louisville transportation partners” are currently using these MVEBs to determine conformity. The Louisville transportation partners include the Atlanta and Chicago regional offices of EPA; the Kentucky and Indiana offices of the Federal Highway Administration; the Atlanta and Indianapolis offices of the Federal Transit Administration; the Kentucky Transportation Cabinet; the Indiana Department of Transportation; the Louisville Metro Air Pollution Control District; the Kentucky Department of Air Quality; the Indiana Department of Air Quality; and, the Kentuckiana Planning Development Agency.
The primary purpose of the SIP revisions that are the subject of this action is to meet a commitment the District made in association with the ozone redesignation request and maintenance plans for the Louisville 1-hour ozone maintenance area that EPA approved on October 23, 2001 (66 FR 53665). As part of the ozone maintenance demonstration, the District committed to update the 2012 MVEBs associated with the maintenance demonstration for the Kentucky and Indiana portions of this area within two years of the release of the EPA MOBILE6 emission factor model. Briefly, a MVEB, in the context of a maintenance plan, is the projected emissions of mobile sources that support a demonstration that the area will continue to maintain the air quality standard for ten years into the future.
In the District's maintenance demonstration, EPA initially allowed the area to use interim emission projections to claim credit for emission reductions associated with EPA's Tier 2/Low Sulfur fuel program through a MOBILE5-based MVEB, on the condition that the area make a commitment to revise the MOBILE5-based MVEB within two years of the release of the new MOBILE6 emissions model. EPA did this because of uncertainties associated with the ability of MOBILE5 to quantify the benefits of the Tier 2/Low Sulfur fuel program. EPA officially released MOBILE6 for use on January 29, 2002, and the Kentucky and Indiana SIP revisions were developed to meet the original commitment noted above.
On January 5, 2004, EPA published a proposed rule (69 FR 302) to simultaneously approve the June 27, 2003, and June 26, 2003, revisions to the Kentucky and Indiana SIPs which include revised 2012 MVEBs using MOBILE6 for both the Kentucky and Indiana portions of the Louisville 1-hour ozone maintenance area. A detailed description of these revisions and EPA's rationale for approving them is provided in the January 5, 2004, proposal and will not be restated here. The public comment period ended February 4, 2004. No adverse comments were received on EPA's proposal. EPA did receive, however, a request to clarify a particular aspect of the rule, as discussed further below. The revised 2012 MVEBs for the total Louisville area are 47.28 tons per day (tpd) for volatile organic compounds (VOC) and 111.13 tpd for nitrogen oxides (NO
During the 30-day comment period for the proposed action, EPA received a request to clarify whether EPA's proposed action on Indiana's and Kentucky's June 26, 2003, and June 27, 2003, SIP submittals removed the requirement for the Jefferson County inspection and maintenance program, known as the Vehicle Emissions Testing or “VET” Program, from the Kentucky SIP because no credit was taken for this program in the maintenance plan.
In developing the June 27, 2003, SIP revision, the District elected not to take credit for reductions from the VET Program in Jefferson County, Kentucky in Louisville's 1-Hour Ozone Maintenance Plan. (
On September 22, 2003, Kentucky submitted a SIP revision to transfer the Jefferson County VET Program from a mandatory measure to a contingency measure in the SIP. This pending submittal is separate from and unrelated to the revised budgets in the Louisville 1-Hour Ozone Maintenance Plan, and will be addressed by EPA in the future in a separate action. EPA was not, and is not, in this rulemaking taking action on Kentucky's September 22, 2003, SIP revision to transfer the Jefferson County VET Program to a contingency measure in the SIP. Today's action only concerns approval of the revised MVEBs which do not contain emission reductions from the VET Program. Approval of the SIP revision to transfer the VET Program to the contingency portion of the SIP will require review of that SIP revision and determination that it complies with section 110(l) of the Act. That analysis has not yet been completed.
EPA is finalizing approval of the 2012 MVEBs for both the Kentucky and Indiana portions of the Louisville 1-hour ozone maintenance area. The revised 2012 MVEBs for the total Louisville area are 47.28 tpd for VOC and 111.13 tpd for NO
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 19, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42.U.S.C. 7401
(z) EPA is approving a revision to the Indiana SIP submitted by Indiana on June 26, 2003. The revision is for transportation conformity budgets for the Clark and Floyd portion of the Louisville area. The revised 2012 motor vehicle emission budgets (MVEBs) for the total Louisville area are 47.28 tons per day (tpd) for volatile organic compounds (VOC) and 111.13 tpd for oxides of nitrogen.
(e) * * *
Federal Deposit Insurance Corporation.
Proposed rule; extension of comment period.
On August 20, 2004, the Federal Deposit Insurance Corporation (FDIC), requested public comment on proposed revisions to 12 CFR part 345 implementing the Community Reinvestment Act (CRA) (69 FR 51611, August 20, 2004). The FDIC is extending the comment period on the proposal until October 20, 2004. This action will allow interested persons additional time to analyze the issues and prepare their comments.
Comments must be received on or before October 20, 2004.
You may submit comments, identified by RIN number 3064-AC50 by any of the following methods:
• Agency Web site:
• Mail: Robert E. Feldman, Executive Secretary, Attention: Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
• Hand Delivered/Courier: The guard station at the rear of the 550 17th Street Building (located on F Street), on business days between 7 a.m. and 5 p.m.
• E-mail:
• Public Inspection: Comments may be inspected and photocopied in the FDIC Public Information Center, Room 100, 801 17th Street, NW., Washington, DC, between 9 a.m. and 4:30 p.m. on business days.
Instructions: Submissions received must include the agency name and RIN for this rulemaking. Comments received will be posted without change to
Richard M. Schwartz, Counsel, Legal Division, (202) 898-7424; or Susan van den Toorn, Counsel, Legal Division, (202) 898-8707; Robert W. Mooney, Chief, CRA and Fair Lending Policy Section, Division of Supervision and Consumer Protection; Deirdre Ann Foley, Senior Policy Analyst, Division of Supervision and Consumer Protection, (202) 898-6612; or Pamela Freeman, Policy Analyst, Division of Supervision and Consumer Protection, (202) 898-6568,Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
On August 20, 2004, the FDIC requested comment on revisions to 12 CFR 345 implementing the CRA that would (a) change the definition of “small bank” to raise the asset size threshold to $1 billion regardless of holding company affiliation; (b) add a community development activity criterion to the streamlined evaluation method for small banks with assets greater than $250 million and up to $1 billion; and (c) expand the definition of “community development” to encompass a broader range of activities in rural areas. In addition, the FDIC also sought comments on other options.
The proposal was published for a 30-day comment period, which was scheduled to close on September 20, 2004. In order to ensure that as many interested parties as possible have time to comment on the proposal, the comment period is being extended to October 20, 2004.
You should submit your comments on the proposal on or before October 20, 2004.
By order of the Board of Directors.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 79-20-08, which applies to all Great Lakes Aircraft Company, LLC, (Great Lakes) Models 2T-1A-1 and 2T-1A-2 airplanes with a Lycoming IO-360-B1F6 or AIO-360-B1G6 engine installed. AD 79-20-08 currently requires you to inspect the engine induction system and the alternate air door for any signs of damage and repairing or replacing any damaged components. AD 79-20-08 also requires you to inspect the induction system for the presence of a drain fitting. If the drain fitting is blocked, restricted, or does not exist, AD 79-20-08 requires you to clear the fitting or drill a hole in the elbow at the fitting location. This proposed AD is the result of the FAA inadvertently omitting Lycoming engine AEIO-360-B1G6 from the applicability section of AD 79-20-08. Consequently, this proposed AD would retain the actions required in AD 79-20-08 and add Lycoming engine AEIO-360-B1G6 to the applicability section. We are issuing this proposed AD to prevent the aircraft induction system from becoming blocked or restricted, which could result in engine failure. This failure could lead to loss of control of the airplane.
We must receive any comments on this proposed AD by November 16, 2004.
Use one of the following to submit comments on this proposed AD:
•
•
•
•
•
You may view the comments to this proposed AD in the AD docket on the Internet at
Roger Caldwell, Aerospace Engineer, Denver Aircraft Certification Office (ACO), Federal Aviation Administration (FAA), 26805 E. 68th Ave., Rm 214 Denver, CO 80249-6361; telephone: (303) 342-1086; facsimile: (303) 342-1088.
All fuel-injected engines are required to have an alternate air source. If the primary induction air source becomes blocked or restricted, the lower pressure differential in the induction system would overcome a spring tension on the alternate air door and provide a secondary airflow path for the engine.
Inspections of Lycoming engines IO-360-B1F6 and AIO-360-B1G6 revealed instances of heat distortion, damage, and cracks in the alternate air door. Extensive damage to the alternate air door could cause pieces to break off and get sucked into the induction system blocking the airflow to the engine.
Additional inspections revealed that some of the affected engines did not have an induction system drain to remove fluid and/or moisture away from the engine.
These conditions caused us to issue AD 79-20-08. AD 79-20-08 currently requires the following on all Great Lakes Models 2T-1A-1 and 2T-1A-2 airplanes that have a Lycoming engine IO-360-B1F6 or AIO-360-B1G6 installed:
We estimate the following costs to accomplish any necessary repairs and/or replacements that would be required based on the results of this proposed inspections. We have no way of determining the number of airplanes that may need these repairs and/or replacements:
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 proposed 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.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 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. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 79-20-08, Amendment 39-3580, and by adding a new AD to read as follows:
(a) We must receive comments on this proposed airworthiness directive (AD) by November 16, 2004.
(b) This AD supersedes AD 79-20-08, Amendment 39-3580.
(c) This AD affects all Model 2T-1A-1 and 2T-1A-2 airplanes that have a Lycoming IO-360-B1F6, AIO-360-BIG6, or AEIO-360-BIG6 engine installed and that are certificated in any category.
(d) This AD is the result of heat distortion, damage, and cracks found in the aircraft induction system on Lycoming IO-360-B1F6, AIO-360-B1G6, and AEIO-360-BIG6 engines. The actions specified in this AD are intended to prevent the aircraft induction system from becoming blocked or restricted, which could result in engine failure. This failure could lead to loss of control of the airplane.
(e) To address this problem, you must do the following:
(f) You may request a different method of compliance or a different compliance time for this AD by following the procedures in 14 CFR 39.19. Unless FAA authorizes otherwise, send your request to your principal inspector. The principal inspector may add comments and will send your request to the Manager, Denver Aircraft Certification Office, FAA. For information on any already approved alternative methods of compliance, contact Roger Caldwell, Aerospace Engineer, Denver ACO, FAA, 26805 E. 68th Ave., Rm 214 Denver, CO 80249-6361; telephone: (303) 342-1086; facsimile: (303) 342-1088.
(g) You may view the AD docket at the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at
Environmental Protection Agency (EPA).
Proposed rule; extension of comment deadline; and new hearing date.
With this document, EPA is advising individuals of an extension of the deadline to request a hearing, of the new hearing date, and of the revised deadline for submitting comments to the Agency on the notice of proposed rulemaking (NPRM) entitled “Protection of Stratospheric Ozone: Process for Exempting Critical Uses from the Phaseout of Methyl Bromide” published in the
The proposed exemption to the phaseout of methyl bromide for critical uses is allowed under section 604 of the Clean Air Act ( CAA) and the
The new deadline to request a hearing is September 17, 2004. A hearing has been requested and is scheduled to take place on September 20, 2004. The revised deadline to submit comments on the NPRM to the Agency is October 21, 2004.
For further information about the hearing, contact Hodayah Finman by telephone at (202) 343-9246, or by e-mail at
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to approve the State Implementation Plan (SIP) revision submitted by the North Carolina Department of Environment and Natural Resources on June 4, 2004. This SIP revision satisfies the requirement of the Clean Air Act (CAA) for the second 10-year update for the Raleigh/Durham area (Durham and Wake Counties and a portion of Granville County) and Greensboro/Winston-Salem/High Point area (Davidson, Forsyth, and Guilford Counties and a portion of Davie County) 1-hour ozone maintenance plans.
In the Final Rules section of this
Written comments must be received on or before October 20, 2004.
Comments may be submitted by mail to: Rosymar De La Torre Colo
Rosymar De La Torre Colo
For additional information see the direct final rule which is published in the Rules section of this
Environmental Protection Agency (EPA).
Notice of data availability (NODA) and request for comments.
This document announces the availability of information we have acquired that might be relevant to determining whether alternate regulatory requirements are appropriate for facilities under the Clean Water Act that handle oil below a certain threshold amount (“certain facilities”). We are
In addition to this document, the EPA is also publishing in today's
Written comments must be received by November 19, 2004.
Submit your comments, identified by Docket ID No. OPA-2004-0007, by one of the following methods:
I.
II.
III.
IV.
For general information, contact the RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In the Washington, DC, metropolitan area, call 703-412-9810 or TDD 703-412-3323. For more detailed information on specific aspects of this notice, contact Hugo Paul Fleischman at 703-603-8769 (
You may find the following suggestions helpful for preparing your comments:
1. Explain your views fully and clearly.
2. Describe in detail and explain all assumptions you used.
3. Provide all technical information, data, and analyses you used to support your views.
4. If you estimate potential burden or costs, provide all data and analyses that you used to arrive at your estimate.
5. Provide specific examples to illustrate all your concerns.
6. Make sure to submit your comments by the comment period deadline identified.
7. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
33 U.S.C. 1251
The Agency is soliciting comments only on the data referenced in this NODA; we are not soliciting comments in this NODA on any other topic. The data may be found at Docket No. OPA-2004-0007 (
Environmental Protection Agency (EPA).
Notice of data availability (NODA) and request for comments.
This document announces the availability of information that might be relevant to determining whether alternate regulatory requirements for facilities with oil-filled and process equipment under the Clean Water Act would be appropriate. We are making this information available for public review and comment as part of our process of considering possible streamlined approaches that would ensure protection of human health and the environment from oil spills occurring at facilities with such oil-filled and process equipment.
In addition to this document, the EPA is also publishing in today's
Written comments must be received by November 19, 2004.
Submit your comments, identified by Docket ID No. OPA-2004-0008, by one of the following methods:
For general information, contact the RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In the Washington, DC, metropolitan area, call 703-412-9810 or TDD 703-412-3323. For more detailed information on specific aspects of this notice, contact Hugo Paul Fleischman at 703-603-8769 (
You may find the following suggestions helpful for preparing your comments:
1. Explain your views fully and clearly.
2. Describe in detail and explain all assumptions you used.
3. Provide all technical information, data, and analyses you used to support your views.
4. If you estimate potential burden or costs, provide all data and analyses that you used to arrive at your estimate.
5. Provide specific examples to illustrate all your concerns.
6. Make sure to submit your comments by the comment period deadline identified.
7. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
33 U.S.C. 1251
The Agency is soliciting comments only on the data provided; we are not soliciting comments in this NODA on any other topic. The data may be found at Docket No. OPA-2004-0008 (
Forest Service, USDA.
Notice of intent to prepare an Environmental Impact Statement.
The USDA Forest Service will prepare an Environmental Impact Statement (EIS) to document the analysis and disclose environmental impacts of proposed actions to continue long-term research on the Fernow Experimental Forest, to initiate new research, and to manage the Fernow Experimental Forest for long-term research. The purpose of the proposed research is to evaluate the effectiveness of silvicultural tools that include harvesting, herbicide control of vegetation, and prescribed burning on central Appalachian forest, to better understand ecological dynamics within these forest ecosystems, and to develop management tools, practices and guidelines for central Appalachian hardwood forests.
The 4700-acre Fernow Experimental Forest is situated within the boundary of the Monongahela National Forest in Tucker County, West Virginia and is managed by the Northeastern Research Station of the USDA Forest Service. These proposed research activities are in compliance with the Monongahela National Forest Management Plan, which provides overall guidance for management of the area, including direction for management of the Fernow Experimental Forest.
Initial comments concerning the proposed action should be received in writing, no later than 45 days from the publication of this notice of intent, in order to be of most use during the analyses. The draft environmental impact statement is expected in January 2005, and the final environmental impact statement is expected June 2005.
Please send comments to USDA Forest Service, Timber and Watershed Laboratory, Attn: Fernow EIS, P.O. Box 404, Parsons, WV 26287.
Mary Beth Adams, Project leader, USDA Forest Service, Northeastern Research Station, P.O. Box 404, Parsons, WV 26287; (304) 478-2000;
Proper management of central Appalachian hardwood forests is important for maintaining the productivity and diversity of these woodlands, and to sustain their value for the many owners and users of forest land throughout the central Appalachians. To do this, management guidelines based on sound scientific research are needed. Often, it is necessary that this research be long-term in scope and duration to adequately describe long-lived forests. Accordingly, to meet these information needs, the purpose of the proposed actions is to: (1) Conduct research on effects of various silvicultural practices on forest productivity, species composition and diversity, wildlife populations and ecosystem processes, and (2) manage the Fernow Experimental Forest for long-term ecosystem research.
The proposed action involves using the following silvicultural treatments in existing research studies: diameter-limiting cutting treatment on 32.7 acres, single-tree selection on 169.9 acres, financial maturity harvesting method on 189.7 acres, 20.8 acres of small clearcuts, and a shelterwood/prescribed fire treatment of 74 acres. Other treatments include fertilization of a 84.7-acre watershed with ammonium sulfate fertilizer, herbicide treatment of selected trees and prescribed burning on 392 acres, mechanical and chemical treatments of invasive exotic plants to prevent their spread, and maintenance of roads, decks, and other infrastructure.
The decision to be made is whether or not to conduct research and management activities, including harvesting, prescribed fire fertilization, and use of herbicides, on approximately 900 acres of the Fernow Experimental Forest.
The Forest Service is soliciting comments form Federal, State and local agencies, and other individuals or organizations that may be interested in or affected by the proposed research activities, by contacting persons and organizations on the Fernow's mailing list and publishing a notice in the local newspaper. No scoping meetings are planned at this time. The present solicitation is for comments on this Notice of Intent and scoping material available elsewhere.
Preliminary or potential issues have been identified from previous public comments:
(1) Timber harvesting and prescribed burning may decrease land productivity through increased erosion, and thereby increasing sediment inputs to streams.
(2) Habitat of federally endangered wildlife species may be affected by logging and prescribed burning.
(3) Addition of ammonium sulfate fertilizer to a watershed may increase acidity downstream of the treatment reach, and adversely affect trout populations.
This notice of intent initiates the scoping process that guides the development of the environmental impact statement. Comments in response to this solicitation for information should focus on: (1) The proposed research manipulations and management actions (2) possible alternatives for addressing issues
A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
USDA Forest Service.
The Northwest Sacramento Provincial Advisory Committee (PAC) will meet on October 18, and 19, 2004, in Redding and Willows, California. The purpose of the meeting is to conduct annual implementation monitoring of two projects completed in previous years, relating to standards and guidelines in the Northwest Forest Plan (NFWP).
The meeting will be held from 8 a.m. to 5:30 p.m. October 18 and 19, 2004.
The meeting will be held in the field both days, beginning at the Trinity Conference Room in the Shasta-Trinity National Forest Headquarters, 3644 Avtech Parkway, Redding, CA, 96002.
Julie Nelson, Northwest Sacramento PAC staff liaison, USDA, Shasta-Trinity National Forest, 3644 Avtech Parkway, Redding, CA, 96002; (530) 226-2429; e-mail:
The two projects to be monitored are: (1) Green Mountain Prescribed Fire, Shasta Lake Ranger District of the Shasta-Trinity National Forest; and (2) Salt Log Timber Sale Burn, Grindstone Ranger District of the Mendocino National Forest. The meeting is open to the public.
The President's Export Council Subcommittee on Export Administration (PECSEA) will meet on October 20, 2004, 10 a.m., at the U.S. Department of Commerce, Herbert C. Hoover Building, Room 4832, 14th Street between Pennsylvania and Constitution Avenues, NW., Washington, DC. The PECSEA provides advice on matters pertinent to those portions of the Export Administration Act, as amended, that deal with United States policies of encouraging trade with all countries with which the United States has diplomatic or trading relations and of controlling trade for national security and foreign policy reasons.
1. Opening remarks by the Chairman.
2. Bureau of Industry and Security (BIS) and Export Administration update.
3. Export Enforcement update.
4. Presentation of papers or comments by the public.
5. Discussion of matters properly classified under Executive Order 12958, dealing with the U.S. export control program and strategic criteria related thereto.
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the PECSEA. Written statements may be
A Notice of Determination to close meetings, or portions of meetings, of the PECSEA to the public on the basis of 5 U.S.C. 522(c)(1) was approved on October 8, 2003, in accordance with the Federal Advisory Committee Act.
For more information, call Ms. Carpenter on (202) 482-2583.
Import Administration, International Trade Administration, Department of Commerce.
Request for Comments.
On May 3, 2004, the Department of Commerce published a notice in the
Taking into account the submissions in response to its first notice requesting comments on various changes to its separate rates policy and practice, this notice outlines revised options for such changes in order to provide the public with an opportunity to comment on whether those changes would be consistent with the statute and would redress problems that have been identified concerning separate rates appropriately. The Department intends to consider additional modifications to its NME practice and may solicit additional public comment on other potential changes, as appropriate.
Comments must be submitted by October 15, 2004.
Written comments (original and six copies) should be sent to James J. Jochum, Assistant Secretary for Import Administration, U.S. Department of Commerce, Central Records Unit, Room 1870, Pennsylvania Avenue and 14th Street NW., Washington, DC 20230.
Lawrence Norton, Economist, or Anthony Hill, Senior International Economist, Office of Policy, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC, 20230, 202-482-1579 or 202-482-1843.
In an NME antidumping proceeding, the Department presumes that all companies within the country are subject to governmental control and should be assigned a single antidumping duty rate unless an exporter demonstrates the absence of both
To establish whether a firm is sufficiently independent from government control in its export activities to be entitled to a separate rate, the Department analyzes each exporting entity under a test arising from the
In an antidumping investigation or review, the Department will usually assign a weighted-average of the
As it announced in its May 3, 2004, notice in the
Another issue that has been raised by parties concerns potential evasion of duties. Under current practice, separate rates are assigned only to exporters, and the assigned rate applies regardless of which entity produces the subject merchandise. In cases where the rates vary widely from exporter to exporter, there is a strong incentive for exporters assigned either the country-wide rate or a high calculated rate to ship their merchandise through an exporter assigned a lower rate. Such diversion arguably undermines the effect of other antidumping or countervailing duty margins the Department calculates.
In order to address these concerns, the Department is now considering an additional set of options, set forth in the Appendix to this notice, and is particularly interested in comments relating to these possible approaches, including comments on their consistency with the statute and regulations.
Persons wishing to comment should file a signed original and six copies of each set of comments by the date specified above. The Department will consider all comments received before the close of the comment period. Consideration of comments received after the end of the comment period cannot be assured. The Department will not accept comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. The Department will return such comments and materials to the persons submitting the comments and will not consider them in development of any changes to its practice. All comments responding to this notice will be a matter of public record and will be available for public inspection and copying at Import Administration's Central Records Unit, Room B-099, between the hours of 8:30 a.m. and 5 p.m. on business days. The Department requires that comments be submitted in written form. The Department recommends submission of comments in electronic form to accompany the required paper copies. Comments filed in electronic form should be submitted either by e-mail to the webmaster below, or on CD-ROM as comments submitted on diskettes are likely to be damaged by postal radiation treatment.
Comments received in electronic form will be made available to the public in Portable Document Format (PDF) on the Internet at the Import Administration 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:
Through this streamlined and more focused separate rates application process, the Department could conserve resources by receiving and reviewing only the information most relevant to separate rate eligibility, such as an
The Department welcomes comments on the legal and administrative advisability of combination rates and, if instituted, how best to construct them. In particular, the Department is interested in comments as to what rate it should assign to exporters' merchandise from suppliers for which the Department has not established a combination rate.
Recent antidumping investigations indicate that the relationship between Chinese producers, in particular, and resellers outside China can be complex and difficult to assess given the limited resources of the Department. Therefore, the Department is considering instituting a rebuttable presumption that NME producers shipping subject merchandise through third countries are aware that their goods are bound for the United States. In other words, the Department would assume that NME producers shipping through third countries set the export price to the United States and assign to them, and not the reseller, antidumping duty rates, unless evidence were presented to the contrary. In accordance with standard practice, the NME producer/exporter would be required to demonstrate lack of
Import Administration, International Trade Administration, Department of Commerce.
Notice of Continuation of Antidumping Duty Order: Barbed Wire and Barbless Fencing Wire From Argentina.
As a result of the determinations by the Department of Commerce (“the Department”) and the International Trade Commission (“Commission”) that revocation of the antidumping duty order on Barbed Wire and Barbless Fencing Wire From Argentina would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing notice of the continuation of this antidumping duty order.
September 20, 2004.
Martha V. Douthit, Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: (202) 482-5050.
On April 1, 2004, the Department initiated and the Commission instituted a sunset review of the antidumping duty order on Barbed Wire and Barbless Fencing Wire from Argentina, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
On September 3, 2004, the Commission determined pursuant to section 751(c) of the Act, that revocation of the antidumping duty order on Barbed Wire and Barbless Fencing Wire From Argentina would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
The merchandise covered by this order is Barbed Wire and Barbless Fencing Wire From Argentina, which is currently classifiable under Harmonized Tariff Schedule (“HTS”) item number 7313.00.00. The HTS item numbers are provided for convenience and customs purposes. The written product description remains dispositive.
As a result of the determinations by the Department and the Commission that revocation of this antidumping duty order would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the antidumping duty order on Barbed Wire and Barbless Fencing Wire From Argentina. The effective date of continuation of this order will be the date of publication in the
Department of Commerce, International Trade Administration.
The Department of Commerce (Department) is soliciting requests for the modification of the limitations on the quantity of imports of certain worsted wool fabric under the 2004 tariff rate quotas established by the Trade and Development Act of 2000 (TDA 2000).
The Department hereby solicits requests for the modification of the limitations on the quantity of imports of certain worsted wool fabric under the 2005 tariff rate quotas established by the TDA 2000, and amended by the Trade Act of 2002. To be considered, a request must be received or postmarked by 5 p.m. on October 5, 2004 and must comply with the requirements of 15 CFR 340. If a request is received, the Department will solicit comments on the request in the
Requests must be submitted to: Industry Assessment Division, Office of Textiles and Apparel, Room 3100, United States Department of Commerce, Washington, DC 20230. Six copies of any such requests must be provided.
Sergio Botero, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4058.
Title V of the TDA 2000 created two tariff rate quotas (TRQs), providing for temporary reductions for three years in the import duties on limited quantities of two categories of worsted wool fabrics suitable for use in making suits, suit-type jackets, or trousers: (1) for worsted wool fabric with average fiber diameters greater than 18.5 microns (Harmonized Tariff Schedule of the United States (HTS) heading 9902.51.11); and (2) for worsted wool fabric with average fiber diameters of 18.5 microns or less (HTS heading 9902.51.12).
On August 6, 2002, President Bush signed into law the Trade Act of 2002, which includes several amendments to Title V of the TDA 2000. These include the extension of the program through 2005; the reduction of the in-quota duty rate on HTS 9902.51.12 (average fiber diameter 18.5 microns or less) from 6 percent to zero, effective for goods entered, or withdrawn from warehouse for consumption, on or after January 1, 2002; and an increase in the 2003 through 2005 TRQ levels to 3,500,000 square meters for HTS 9902.51.12 and to 4,500,000 square meters for HTS 9902.51.11. Both of these limitations may be modified by the President, not to exceed 1,000,000 square meters per year for each tariff rate quota.
The TDA 2000 requires the annual consideration of requests by U.S. manufacturers of men's or boys' worsted wool suits, suit-type jackets and trousers for modification of the limitation on the quantity of fabric that may be imported under the tariff rate quotas, and grants the President the authority to proclaim modifications to the limitations. In determining whether to modify the limitations, specified U.S. market conditions with respect to worsted wool fabric and worsted wool apparel must be considered. On January 22, 2001, the Department published regulations establishing procedures for considering requests for modification of the limitations. Modification of Tariff Rate Quota Limitation on Worsted Wool Fabric Imports, 66 FR 6459 (Jan. 22, 2001) (15 CFR 340).
To be considered, requests must be submitted by a manufacturer of men's or boys' worsted wool suits, suit-type jackets, and trousers in the United States and must comply with the requirements of 15 CFR 340.
A request must include: (1) The name, address, telephone number, fax number, and Internal Revenue Service number of the requester; (2) The relevant worsted wool apparel product(s) manufactured by the person(s), that is, worsted wool suits, worsted wool suit-type jackets, or worsted wool trousers; (3) The modification requested, including the amount of the modification and the limitation that is the subject of the request (HTS heading 9902.51.11 and/or 9902.51.12); and (4) A statement of the basis for the request, including all relevant facts and circumstances. 15 CFR 340.3(b).
A request should include the following information for each limitation that is the subject of the request, to the extent available: (1) A list of suppliers from which the requester purchased domestically produced worsted wool fabric during the period July 1, 2003 to June 30, 2004, the dates of such purchases, the quantity purchased, the quantity of imported
Requests must be accompanied by a statement by the person submitting the request or comments (if a natural person), or an employee, officer or agent of the legal entity submitting the request, with personal knowledge of the matters set forth therein, certifying that the information contained therein is complete and accurate, signed and sworn before a Notary Public, and acknowledging that false representations to a federal agency may result in criminal penalties under federal law. 15 CFR 340.5(a).
Any business confidential information provided that is marked “business confidential” will be kept confidential and protected from disclosure to the full extent permitted by law. To the extent business confidential information is provided, a non-confidential submission should also be provided, in which business confidential information is summarized or, if necessary, deleted. 15 CFR 340.5(b).
If a request is received, the Department will cause to be published a notice in the
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number (202) 395-7285, or
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number 202-395-7285, or
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number (202) 395-7285, or
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before November 19, 2004.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Karen King, R/WA, 1315 East-West Hwy, Silver Spring, MD 20910-3282 (phone 301-713-0460, ext. 202.
Section 6(b) of Public Law 92-205 requires that persons who engage in weather modification activities (e.g., cloud-seeding) provide reports prior to and after the activity. They are also required to maintain certain records. The requirements are detailed in 15 CFR 908. NOAA uses the data for scientific research, historical statistics, international reports, and other purposes.
Paper forms and recordkeeping are used.
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 the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before November 19, 2004.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Kara Dodge, NOAA/NMFS/NERO, Protected Resources Division, One Blackburn Drive, Gloucester, MA 01930 (Phone 978-281-9328 x6529).
This collection of information involves sea turtles becoming accidentally entangled in active or discarded fixed fishing gear. These entanglements may prevent the recovery of endangered and threatened sea turtle populations. NOAA Fisheries had established the Sea Turtle Disentanglement Network to promote reporting and increase successful disentanglement of sea turtles. As there is limited to no observer coverage of pot gear fisheries, NOAA Fisheries relies on the U.S. Coast Guard, fishing industry, stranding network, federal , state, and local authorities, and the public for this information. The information provided will help NOAA Fisheries better assess pot gear fisheries (lobster, whelk/conch, crab, fish trap) and their impacts on sea turtle populations in the northeast region (Maine to Virginia).
Members of the Disentanglement Network and the public are requested to call and inform NOAA Fisheries of any sea turtle entanglements they encounter. Information provided in these phone calls (or by fax or mail) will include: name and type of reporting vessel, vessel cell phone number or radio call channel, reporter name and home phone number, date/time of report (and/or sighting event), location (latitude and longitude), description of turtle for species identification, status of turtle alive or dead, description of entangling gear (rope, line, buoys, colors, ID numbers), location of entangling gear on turtle (head, flippers, single wrap, multiple wraps), description of any visible injuries, and weather/sea conditions at the scene. Information will be collected by NOAA Fisheries when a sea turtle entanglement event occurs. Reports and documentation of dead or injured sea turtles are also requested. NOAA Fisheries may request assistance from the responder to bring injured sea turtles to the appropriate stranding and rehabilitation facility for veterinary care when practical. NOAA Fisheries may also request assistance to bring fresh dead sea turtles to the appropriate stranding facility for necropsy.
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 the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Gulf of Mexico Fishery Management Council will convene public meetings.
The meetings will be held October 11-15, 2004.
These meetings will be held at the Edgewater Beach Resort, 11212 Front Beach Road, Panama City FL 34207.
Wayne E. Swingle, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 228-2815.
These meetings were previously scheduled to be held on September 13-17, 2004, but were rescheduled due to Hurricane Ivan.
Although other non-emergency issues not on the agendas may come before the Council and Committees for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during these meetings. Actions of the Council and Committees will be restricted to those issues specifically identified in the agendas 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 action to address the emergency. The established times for addressing items on the agenda may be adjusted as necessary to accommodate the untimely completion of discussion relevant to other agenda items. In order to further allow for such adjustments and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date established in this notice.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Dawn Aring at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Mid-Atlantic Fishery Management Council (Council or MAFMC), its Tilefish Committee; its Squid, Mackerel, Butterfish Committee; its Ecosystem Committee; its Joint Dogfish Committee; its Law Enforcement Committee; and, its Executive Committee will hold public meetings.
The meetings will be held on Monday, October 4, 2004 through Thursday, October 7, 2004. See
The meetings will be at the Holiday Inn, 3845 Veterans Memorial Highway, Ronkonkoma, NY 11779; telephone: 631-585-9500.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone: 302-674-2331, ext. 19.
Council will then meet until 2 p.m. to receive Committee reports and address any continuing and/or new business.
Agenda items for the Council's committees and the Council itself are: On October 4, meeting of Tilefish Committee to address and discuss considerations regarding Amendment 1; meeting of the Squid, Mackerel, Butterfish Committee to finalize the public hearing document for Amendment 9; meeting of the Ecosystem Committee to review and discuss outcomes from the NMFS initiated meetings and workshops on GIS, survey instruments and management tools; and, meeting of the Joint Dogfish Committee to review the Monitoring Committee's recommendations regarding 2005/06 fishing year quota and associated management measures, and to develop and adopt recommended quota and management measures for 2005/06 fishing year and set specifications for the same.
On October 5, meeting of the Law Enforcement Committee to address and recommend Council Fishery Achievement Award recipient; Council will elect officers for the new year; approve and adopt Dogfish Management measures for 2005/06; and, conduct a RSA Workshop with the ASMFC and NMFS to review, discuss and establish RSA priorities for 2006 and project selection criteria for 2006.
On October 6, the Council will receive organizational reports, liaison reports, and internal staff reports; review and approve Monkfish Amendment 2 for submission to the Secretary and discuss New England Fishery Management Council's (NEFMC) actions regarding Amendment 2 issues directly impacting the MAFMC such as permits for North Carolina fishermen, closure of deep sea corals and effects of DAS usage for multispecies and scallops; in conjunction with the ASMFC Summer Flounder, Scup, and Black Sea Bass Board, Council will develop 2005 priorities for Summer Flounder, Scup and Black Sea Bass, and will review the outcome of the ASMFC's September workshop on the same.
On October 7, the Executive Committee will meet to review the 2005 annual work plan, discuss committee structures, and address staff benefits; the Council will review and discuss the SAFMC's King Mackerel Amendment 15; and hear a presentation on the Long Island Wind Energy Proposal; receive committee reports; and, act on any new and/or continuing business.
Although non-emergency issues not contained in this agenda may come before the Council for discussion, these 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 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 actions to address such emergencies.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Debbie Donnangelo (302-674-2331) at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Ad Hoc Channel Islands Marine Reserve Committee (CIMRC) will hold a work session to consider information related to proposed marine reserves and marine conservation areas within Channel Islands National Marine Sanctuary (CINMS) and to develop recommendations for the Council. The work session is open to the public.
The CIMRC will meet Tuesday, October 5, 2004 from 10 a.m. to 5 p.m. and Wednesday, October 6, 2004 from 9 a.m. until business for the day is completed.
The meeting will be held at The Benson Hotel, 309 SW Broadway, Portland, OR 97205; telephone: 503-228-2000.
Mr. Dan Waldeck, Pacific Fishery Management Council; telephone: 503-820-2280.
The purpose of the meeting will be to review the
At the November 2004 Council meeting, it is anticipated the Council would be scheduled to review the comments of the advisory bodies and public and provide formal comment to CINMS for completing the range of alternatives and analytical elements of a draft environmental impact statement for proposed marine reserves and marine conservation areas within CINMS.
More information about the proposed CINMS project and draft document is available at:
This is a public meeting, and time for public comment will be provided at the discretion of the committee chair. Generally, a public comment period will be provided just prior to the end of each day. Please note, this is not a public hearing, rather it is a work session to develop information for Council consideration.
Although non-emergency issues not contained in the meeting agenda may come before the CIMRC for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document 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 CIMRC's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at 503-820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council (Council) will convene a meeting of the Ad Hoc Vessel Monitoring System (VMS) Committee, which is open to the public. The primary purpose of the meeting is to review the Council recommendations on expanding the VMS program for West Coast groundfish fisheries to additional fishery sectors and to develop recommendations for the November 2004 Council meeting.
The Ad Hoc VMS Committee will meet Thursday, October 7, 2004 beginning at 8:30 a.m. and continuing until business for the day is completed.
The meeting will be held at the Benson Hotel, 309 SW Broadway, Portland, OR 97205-3725; telephone: 503-228-2000.
Mr. Mike Burner, Pacific Fishery Management Council Groundfish Staff Officer; telephone: 503-820-2280.
The Council approved and the National Marine Fisheries Service implemented a pilot VMS program which began on January 1, 2004 for the limited entry trawl and limited entry fixed gear groundfish fishery sectors. The committee needs to consider expanding the VMS program to ensure effective monitoring and enforcement of area closures in commercial and recreational groundfish fisheries. At the September 2004 Council meeting, the Council is scheduled to review a draft Environmental Assessment which builds on the existing program and consider adopting a range of program expansion alternatives for public review. The Ad Hoc VMS Committee will review the current VMS program, consider Council recommendations on expanding the program, and develop recommendations for the November 2004 Council meeting.
At the November 2004 Council meeting, it is anticipated the Council would be scheduled to review the comments of the advisory bodies and public and identify a preferred alternative for expansion of the current monitoring program.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document 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 intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at 503-820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notification of a proposal for EFPs to conduct experimental fishing; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS (Assistant Regional Administrator) has made a preliminary determination that the subject EFP application contains all the
Comments on this document must be received on or before October 5, 2004.
Written comments should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on GOM Gillnet Study.” Comments may also be sent via facsimile (fax) to (978) 281-9135, or submitted via e-mail to the following address:
Karen Tasker, Fishery Management Specialist, phone 978-281-9273.
The Gulf of Maine Research Institute, Massachusetts Division of Marine Fisheries, and Angelica Fisheries, Inc., submitted an application for an EFP on August 13, 2004. The primary goal of the research is to establish gillnet selectivity curves for haddock in the GOM, and to test whether it is possible to catch legal-size haddock with gillnet gear with mesh size that is less than 6.5 inches (16.5 cm) while avoiding catching cod or other species of concern in an area east of Cape Ann, Massachusetts, during the period January through April 2005. The EFP would allow for exemptions from the regulations implementing the FMP as follows: The Western GOM Closure Area specified at § 648.81(e) and the minimum gillnet mesh size specified at § 648.80(a)(3)(iv)(B)(
Five gillnets of mesh sizes ranging from 4.5 to 6.5 inches (11.4 to 16.5 cm), in 0.5-inch (1.3 cm) increments, would be fished in six groups (each group containing one net of each mesh size), for a total of 30 nets. The nets would be of standard commercial length, 300 ft (91.4 m), and approximately two-thirds the standard commercial height, resulting in a height of 7.5 ft (2.3 m). This net size was selected based on the applicants' belief that cod typically are captured in the upper meshes of standard nets when standard nets are fished in this area. The soak times in the early stages of the study would be approximately 3 to 6 hours in order to reduce the likelihood of unwanted bycatch. Soak times may be slowly increased up to 20 hours if doing so can be accomplished with minimal bycatch.
Researchers would fish in area off of Cape Ann, Massachusetts, between 42°35′ and 42°50′ N. lat. and 69°50′ to 70°15′ W. long. (30-minute squares 131 and 132). This area includes the Western GOM Closure Area. The research would take place over a total of 14 sea days and would occur on one commercial fishing vessel.
Researchers speculate that they will be able to catch haddock with minimal cod bycatch based on commercial fishing experience that indicates that small cod are not present in this area of relatively deep water during the proposed study period. Furthermore, commercial fishing experience indicates that haddock are present in high densities in the research area during the study period.
Researchers estimate that the total catch for the sampling days would be 30,000 lb (13,608 kg), of which less than 2,000 lb (907 kg) would be cod. Should researchers capture more than 2,000 lb (907 kg) of cod, access to the Western GOM Closure Area would be terminated.
The data collection activities aboard the participating vessels would be conducted by observers from the Gulf of Maine Research Institute and Massachusetts Division of Marine Fisheries to ensure compliance with the experimental fishery objectives.
16 U.S.C. 1801
The U.S. Department of Commerce Technology Administration is hosting Technology Recycling: Achieving Consensus for Stakeholders, a roundtable on market issues affecting electronics recycling. Stakeholders including selected representatives of electronics manufacturers, retailers, recyclers, and environmental organizations have been invited to participate. Topics of discussion will include collection and funding mechanisms for electronics recycling, current electronics recycling activities, and creating a market for recycled technology products. The event is open to the public and the press. In order to pre-register, email
Tuesday, September 21, 2004, from 1 to 4 p.m.
U.S. Department of Commerce Auditorium, 1401 Constitution Avenue, NW., Washington, DC. Enter through the Department of Commerce main entrance on 14th Street between Pennsylvania and Constitution Avenues. Bring a photo ID for security purposes.
Mae Ellis-Covell, 202-482-1581.
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection adjusting a limit.
September 20, 2004.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of this limit, 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 Web site at
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 limit for Categories 342/642 is being increased for the recrediting of unused carryforward.
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 October 14, 2003, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool and man-made fiber textiles and textile products and silk blend and other vegetable fiber apparel, produced or manufactured in the Philippines and exported during the twelve-month period which began on January 1, 2004 and extends through December 31, 2004.
Effective on September 20, 2004, you are directed to increase the current limit for Categories 342/642 to 1,033,101 dozen
The Committee for the Implementation of Textile Agreements has determined that this action falls within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection adjusting limits.
September 21, 2004.
Ross Arnold, 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.cbp.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://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 special shift.
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 October 14, 2003, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in the Republic of Korea and exported during the twelve-month period which began on January 1, 2004 and extends through December 31, 2004.
Effective on September 21, 2004, you are directed to adjust the 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 to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection adjusting limits.
September 20, 2004.
Naomi Freeman, 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.cbp.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://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 swing and special 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 directives issued to you on December 3, 2003 and April 19, 2004 by the Chairman, Committee for the Implementation of Textile Agreements. These directives concern imports of certain cotton and man-made fiber textile products, produced or manufactured in Nepal and exported during the twelve-month period beginning on January 1, 2004 and extending through December 31, 2004.
Effective on September 20, 2004, 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 to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection adjusting limits.
September 20, 2004.
Naomi Freeman, 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.cbp.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://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 limit for Category 435 is being increased for special shift, reducing the limit for Category 444 to account for the special shift being applied to Category 435.
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 16, 2003, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton and wool textiles and textile products in the following categories, produced or manufactured in Romania and exported during the twelve-month period which began on January 1, 2004 and extends through December 31, 2004.
Effective on September 20, 2004, you are directed to adjust the 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 to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection adjusting limits.
September 21, 2004.
Naomi Freeman, 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 Commissioner, Bureau of Customs and Border Protection Web site at
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 swing and carryover.
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 December 10, 2003, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain wool textile products, produced or manufactured in Ukraine and exported during the twelve-month period which began on January 1, 2004 and extends through December 31, 2004.
Effective on September 21, 2004, you are directed to adjust the limits for the following categories, as provided for under the terms of the current bilateral textile agreement between the Governments of the United States and Ukraine:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
11 a.m., Friday, October 1, 2004.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
11 a.m., Friday, October 8, 2004.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
11 a.m., Friday, October 15, 2004.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
11 a.m., Friday, October 22, 2004.
1155 21st St., NW,. Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
11 a.m., Friday, October 29, 2004.
1155 21st St., NW,. Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
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 October 5, 2004.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 04-C0006, Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207.
Michelle Faust Gillice, Trial Attorney, Office of Compliance, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-7667.
The text of the Agreement and Order appears below.
1. Battat Incorporated (hereinafter “Battat” or “Respondent”) enters into this Settlement Agreement and Order (hereinafter, “Settlement Agreement” or “Agreement”) with the staff of the Consumer Product Safety Commission (the “Commission”), and agrees to the entry of the attached Order incorporated by reference herein. The Settlement Agreement resolves the Commission staff's allegations set forth below.
2. The Commission is an independent federal regulatory commission responsible for the enforcement of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2051-2084.
3. Respondent was incorporated on December 30, 1981. It is organized and existing under the laws of the State of Delaware. Its principal office is located at 44 Martina Circle, Plattsburgh, NY 12901. Respondent manufactures games, toys and children's vehicles.
4. Between November 2001 and January 2003 (one month prior to the Commission's request for a full report under section 15(b) of the CPSA, 15 U.S.C. 2064(b)), Respondent manufactured and distributed approximately 300,000 toys called the “Bee Bop Band Drum Set” (“drum sets”). The drum sets are intended and labeled for children eighteen months and up. The drum sets contain several musical objects including a pair of ten inch long drumsticks shaped like centipedes. The drumsticks are the subject of this Settlement Agreement and Order.
5. The drum sets were produced and distributed for sale to consumers for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise and are therefore, “consumer products” as defined in section 3(a)(1) of the CPSA, 15 U.S.C. 2052(a)(1). Respondent was a “manufacturer” of the drum sets which were “distributed in commerce” as those terms are defined in sections 3(a)(4), (11) and (12) of the CPSA, 15 U.S.C. 2052(a)(4), (11) and (12).
6. The drumsticks contained in the Bee Bop Band Drum Set are defective because the rubber end cap, the screw affixing some end caps and the ball tip could break off or detach during use. These pieces are of a size that present choking and aspiration hazards and fit into the “small parts” test cylinder specified in 16 CFR 1501.4.
7. The drumsticks are defective and could create a substantial product hazard under the CPSA, 15 U.S.C. 2064(b)(2) because the parts may present choking and aspiration hazards to small children. Further, the drumsticks created an unreasonable risk of serious injury or death under the CPSA, 15 U.S.C. 2064(b)(3).
8. While the drum sets when subjected to “use and abuse” tests of 16 CFR 1500(51) & (52) (conducted on behalf of Respondent, Respondent's retail customers, and the Commission) did not produce small parts, the drumsticks produced small parts in actual use by young children.
9. Between November 2001 and January 2003, Respondent received over 330 complaints from consumers that either the end cap, the screw, or the tip detached from the drumstick. There were no injuries reported.
10. Respondent modified the product six times between the aforementioned dates in an attempt to eliminate the end cap, screw, and ball tip failures.
11. By the time Respondent modified the drumsticks by adding screws to affix the rubber end caps on May 24, 2002, it had received at least 45 consumer complaints concerning the small parts problem. Certainly by this point in time, Respondent had obtained information which reasonably supported the conclusion that the drumsticks were defective and could create a substantial product hazard or created an unreasonable risk of serious injury or death, but failed to report such information in a timely manner to the Commission as required by sections 15(b)(2) and (3) of the CPSA, 15 U.S.C. 2064(b)(2), (3).
12. On February 6, 2003, after receiving notice of 25 incidents, the Commission requested that Respondent submit a full report pursuant to section 15(b) of the CPSA. Respondent did so on February 25, 2003.
13. By failing to furnish information to the Commission in a timely manner as required by section 15(b) of the CPSA 15 U.S.C. 2064(b), Respondent violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).
14. Respondent committed this failure to report to the Commission “knowingly” as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. § 2069(d), thus, subjecting Respondent to civil penalties under section 20 of the CPSA, 15 U.S.C. § 2069.
15. Respondent denies the staff's allegations that the drumsticks are defective and that it violated the CPSA as set forth in paragraphs 4 through 14.
16. The drum set, manufactured by Respondent's subcontractor, was tested by third party testing facilities for the presence of small parts under the testing requirements set forth in the Commission's regulations at 16 CFR 1501 in each of the subcontractor's 167 individual shipments for the years 2002 through April 2004. A single failure of the test for small parts would have resulted in the rejection of the entire lot. At no time did the testing of the drumsticks produce small parts.
17. The Commission staff tested 12 drum sets in April 2002 and tested another 12 drum sets in October 2002, pursuant to 16 CFR 1501, and on neither occasion did the drumsticks produce small parts.
18. Outside laboratories employed by various customers of Respondent tested the drum sets pursuant to 16 CFR 1501 and none of the drumsticks produced small parts.
19. Because testing results always evidenced compliance with the Commission's small parts regulations, Respondent believes the drumsticks can not be considered defective under 15 U.S.C. 2064.
20. Respondent further alleges that at no time did its products injure or choke a child or present a risk of a choking, aspiration or ingestion hazard to children.
21. The Consumer Product Safety Commission has jurisdiction over this matter and over Respondent under the Consumer Product Safety Act, 15 U.S.C. 2051-2084.
22. Respondent agrees to be bound by, and comply with, this Settlement Agreement and Order.
23. This Agreement is entered into for settlement purposes only and does not constitute an admission by Respondent, or a determination by the Commission, that Respondent knowingly violated the CPSA's reporting requirement.
24. In settlement of the staff's allegations, Respondent agrees to pay in three installments a civil penalty of one hundred and twenty-five thousand 00/100 dollars ($125,000.00) in full settlement of this matter. The first payment of $41,000.00 shall be paid within twenty (20) calendar days of service of the final Settlement Agreement and Order. The second payment of $41,000.00 shall be paid within 110 days of such service. The third and final payment of $43,000.00 shall be paid within 200 days of such service.
25. Upon provisional acceptance of this Agreement by the Commission, this Agreement shall be placed on the public record and shall be published in the
26. Upon final acceptance of this Agreement by the Commission, and issuance of the Final Order, Respondent knowingly, voluntarily, and completely waives any rights it may have in this matter (1) To an administrative hearing, (2) to judicial review or other challenge or contest of the validity of the Commission's actions, (3) to a determination by the Commission as to whether Respondent failed to comply with CPSA and the underlying regulations, (4) to a statement of findings of fact and conclusion of law, and (5) to any claims under the Equal Access to Justice Act.
27. The Commission may publicize the terms of the Settlement Agreement and Order.
28. The Commission's Order in this matter is issued under the provisions of the CPSA, 15 U.S.C. 2051-2084. Violation of this Order may subject Respondent to appropriate legal action.
29. This Settlement Agreement may be used in interpreting the Order. Agreements, understandings, representations, or interpretations apart from those contained in this Settlement Agreement and Order may not be used to vary or contradict its terms.
30. 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 Respondent determine that severing the provision materially affects the purpose of the Settlement Agreement and Order.
31. 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.
32. The provisions of this Settlement Agreement and Order shall apply to Respondent and each of its successors and assigns.
Dated: July 22, 2004.
Upon consideration of the Settlement Agreement between Respondent Battat Incorporated and the staff of the Consumer Product Safety Commission, and the Commission having jurisdiction over the subject matter and over Battat Incorporated, and it appearing that the Settlement Agreement and Order is in the public interest, it is
Provisionally accepted and Provisional Order issued on the 13th day of September, 2004.
By Order of the Commission:
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”), has submitted a public information collection request (ICR) entitled AmeriCorps Alumni Profile Card to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. Chapter 35). Copies of this
Comments may be submitted, identified by the title of the information collection activity, to the Office of information and Regulatory Affairs, Attn: Ms. Katherine Astrich, OMB Desk Office for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in this
(1) By fax to: (202) 395-6974, Attention: Ms. Katherine Astrich, OMB Desk Officer for the Corporation for National and Community Service; and
(2) Electronically by e-mail to:
The initial 60-day public
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, including whether the information will have practical utility;
• Evaluate the accuracy of the Corporation's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility and clarity of the information to be collected; and
• Propose 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,
The Corporation proposes to revise the AmeriCorps Alumni Profile Card by changing the name to more accurately describe the information collection and to include the members who served in all AmeriCorps programs. In addition, the Corporation will delete unused information from the existing version of the card, including removing questions pertaining to meeting facilities and housing and collecting the following data from the former member:
• The exact dates of service from the person filling out the AmeriCorps Alumni Profile Card.
• Detailed information about the person's current interests, occupation and expertise.
• Collecting the person's cell phone number for those who prefer to be contacted in that manner.
The Corporation also plans to gather additional information about former members' current education levels. This will help the Corporation to more accurately gear communication to former members who may be interested in furthering their education or who may benefit from a particular new initiative.
Further, the Corporation proposes to revise the AmeriCorps Alumni Profile Card by asking former members to identify their involvement with the Corporation or community.
Department of Education.
The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 19, 2004.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be
Responses: 58.
Burden Hours: 12,040.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at her e-mail
Office of Fossil Energy, DOE.
Notice of application.
Merrill Lynch Commodities, Inc. (MLCI), has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests or requests to intervene must be submitted on or before October 20, 2004.
Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Systems (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-287-5736).
Steven Mintz (Program Office) 202-586-9506 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On September 7, 2004, the Office of Fossil Energy (FE) of the Department of Energy (DOE) received an application from MLCI to transmit electric energy from the United States to Canada. MLCI is a Delaware corporation with its principal place of business located in New York City, NY. MLCI is an indirect wholly-owned subsidiary of Merrill Lynch & Co. Inc., a Delaware corporation. MLCI has requested an electricity export authorization with a 5-year term. MLCI does not own or control any transmission or distribution assets, nor does it have a franchised service area. The electric energy which MLCI proposes to export to Canada would be purchased from electric utilities and Federal power marketing agencies within the U.S.
MLCI proposes to arrange for the delivery of electric energy to Canada over the existing international transmission facilities owned by Basin Electric Power Cooperative, Bonneville Power Administration, Eastern Maine Electric Cooperative, International Transmission Company, Joint Owners of the Highgate Project, Long Sault, Inc., Maine Electric Power Company, Maine Public Service Company, Minnesota Power Inc., Minnekota Power Cooperative, New York Power Authority, Niagara Mohawk Power Corporation, Northern States Power, Vermont Electric Power Company and Vermont Electric Transmission Company. The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by MLCI, as more fully described in the application, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
Comments on the MLCI application to export electric energy to Canada should be clearly marked with Docket EA-295. Additional copies are to be filed directly with Locke R. McMurray, Merrill Lynch Commodities, Inc., Four World Financial Center, 12th Floor, New York, NY 10080 and David J. Levine and Donna M. Sauter, McDermott Will & Emery LLP, 600 13th Street, NW., Washington, DC 20005-3096.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy Home Page at
Office of Fossil Energy, DOE.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during August 2004, it issued Orders granting authority to import and export natural gas. These Orders are summarized in the attached appendix and may be found on the FE Web site at
On August 18, 2004, Allegheny Energy Supply Company, LLC (AE Supply) and its affiliates, Allegheny Energy Supply Gleason Generating Facility, LLC; Allegheny Energy Supply Hunlock Creek, LLC; Allegheny Energy Supply Lincoln Generating Facility, LLC; Allegheny Energy Supply Wheatland Generating Facility, LLC; Buchanan Generation, LLC; and Green Valley Hydro, LLC (collectively, AE Supply Affiliates), in Docket No. ER00-814-000,
The August 18 filing by AE Supply and the AE Supply Affiliates included proposed revisions to their tariffs associated with the harmonization of the Codes of Conduct among AE Supply and AE Supply Affiliates and proposed revisions associated with brokering provisions. Docket No. ER04-1197-000 has been assigned to the harmonization and brokering provisions included in the August 18, 2004 filing and those revisions are the subject of the instant notice.
Any person desiring to intervene or to protest the harmonization and brokering provisions in the August 18, 2004 filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 9, 2004, CenterPoint Energy Gas Transmission Company (CEGT) tendered for filing the Tariff sheet listed below to become part of its FERC Gas Tariff, Sixth Revised Volume No. 1, which contains agreements between CEGT and Hot Spring Power Company, L.L.C. with respect to a substitute index price for a negotiated rate contract, due to Platt's discontinuation of publication of the Oklahoma West index price in its Gas Daily price surveys.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedures (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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing is also accessable on-line at
Take notice that on September 10, 2004, Southern Natural Gas Company
Specifically, Southern seeks to abandon approximately 22.066 miles of 12-inch pipeline between mile post 29.084 (Duncanville Compressor Station) and mile post 51.150 (Brent and Centerville Gate) on its Montgomery-Columbus Pipeline. Southern states that the pipeline segment is old and in need of extensive repair and that the abandonment will reduce costs resulting from replacement and maintenance. Southern states that this segment of line has not been used to provide transportation service for any customers during the past 12 months and, therefore, no customer consents are required.
Any questions concerning this application may be directed to John C. Griffin, Senior Counsel, at (205) 325-7133, or Patrick B. Pope, Vice President and General Counsel, at (205) 325-7626.
This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Any person or the Commission's staff may, within 45 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the Regulations under the Natural Gas Act (18 CFR 157.205) a protest to the request. If no protest is filed within the time allowed therefor, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the Natural Gas Act.
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that, on September 7, 2004, Allegheny Power submitted a compliance filing pursuant to the Commission's Order of August 5, 2004 in Docket No. ER02-136-005.
Allegheny Power states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that on September 7, 2004, Geysers Power Company, LLC (Geysers Power) filed a refund report in compliance with the Commission's February 27, 2003 Order in
Geysers Power states that copies of the filing were served on all parties on the official service list in the above-captioned proceedings.
Take notice that on September 7, 2004, the California Independent System Operator Corporation (ISO) submitted a filing in compliance with the Commission's August 5, 2004 “Order on Rehearing and Compliance on Proposed Tariff Amendment No. 54”, 108 FERC ¶ 61,142.
The ISO states that this filing has been served upon all parties on the official service list for the captioned docket. In addition, the ISO has posted this filing on the ISO Home Page.
Take notice that on September 7, 2004, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) and PJM Interconnection, L.L.C. (PJM), in compliance with the Commission's order in
Midwest ISO states that copies of this filing were served upon all persons on the official service list compiled by Secretary in this proceeding, as well as all PJM members, and each State electric utility regulatory commission in the PJM regions.
Take notice that, on September 7, 2004, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted a compliance filing pursuant to the Commission's July 8, 2004 Order,
The Midwest ISO states 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 and in
Take notice that on September 7, 2004, the California Independent System Operator Corporation (ISO) submitted a filing in compliance with the Commission's August 5, 2004 “Order on Tariff Amendment No. 58”, 108 FERC ¶ 61,141.
The ISO states that this filing has been served upon all parties on the official service list for the above-captioned docket. In addition, the ISO has posted this filing on the ISO Home Page.
Take notice that, on September 7, 2004, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted a compliance filing pursuant to the Commission's August 6, 2004 Order,
The Midwest ISO states 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 and in addition, the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on September 10, 2004, Lower Mount Bethel Energy, LLC (LMBE) submitted an amendment to its Reactive Revenue Requirement Filing filed on August 20, 2004, in this proceeding. LMBE states that the amendment includes supplemental testimony and attachments to further support LMBE's reliance on the AEP allocators as proxies in LMBE's August 20, 2004 filing.
LMBE states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that on September 7, 2004, American Transmission Systems, Incorporated (ATSI), filed a Construction Agreement with Buckeye Power, Inc. and Lorain-Medina Rural Electric Cooperative for construction of two new delivery points. The proposed effective date for the agreement is September 1, 2004.
ATSI states that copies of this filing have been served on Buckeye Power, Inc., Lorain-Medina Rural Electric Cooperative, and the Midwest ISO, and the public utility commissions of Ohio and Pennsylvania.
Take notice that on September 7, 2004, the California Independent System Operator Corporation (ISO) submitted an amendment to the ISO Tariff (Amendment No. 63). ISO states that Amendment No. 63 modifies its Tariff to accommodate the transfer by Western Area Power Administration, Sierra Nevada Region (Western) of Operational Control over Western's interest in the upgrade of Path 15 to the ISO. ISO further states that the amendment also modifies the ISO Tariff to provide several clarifications concerning cost recovery.
The ISO states that this filing has been served upon the Public Utilities Commission of the State of California, the California Energy Commission, the California Electricity Oversight Board, the Participating TOs, Western, and all parties with effective Scheduling Coordinator Agreements under the ISO Tariff and in addition, the ISO has posted this filing on the ISO Home Page.
Take notice that on September 7, 2004, the New England Power Pool (NEPOOL) Participants Committee filed arrangements to compensate NRG Power Marketing, Inc., Connecticut Jet Power LLC, Middletown Power LLC and Montville Power LLC for costs incurred in connection with the operation of certain of its units at various times during the period of July 22, 2003 through January 24, 2004 at the direction of ISO New England Inc. A November 8, 2004 effective date is requested for the filing.
The NEPOOL Participants Committee states that copies of these materials were sent to the NEPOOL Participants and the New England State governors and regulatory commissions.
Take notice that on September 7, 2003, SESCO Enterprises Canada Ltd. (SESCO) petitioned the Commission for acceptance of SESCO Rate Schedule No. 1; the granting of certain blanket approvals, including the authority to sell electricity at market-based rates; and the waiver of certain Commission regulations.
SESCO states that it intends to engage I wholesale electric power and energy purchases and sales as a marketer. SESCO further states it is not in the business of generating or transmitting electric power. SESCO also states that its only operating affiliate is also a marketer and is also not in the business of generating or transmitting electric power.
Take notice that on September 7, 2004, Dynegy Power Marketing, Inc. (DYPM) submitted for filing DYPM Rate Schedule FERC No. 5, an agreement between DYPM and Illinois Power and SYPM Rate Schedule No. 6, an agreement between DYPM and Illinois Power.
DYPM states that copies of the filing were served upon all parties to Docket Nos. ER04-673-000 and ER04-711-000.
Take notice that on September 7, 2004, Xcel Energy Services Inc. (XES) filed an amendment to its market-based rate tariff. XES states that the purpose of this amendment is to delete the provision allowing for affiliate sales.
Take notice that on September 2, 2004, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted an application pursuant to section 204 of the Federal Power Act seeking authorization to incur long-term indebtedness under a credit agreement in an amount not to exceed $60 million.
Midwest ISO also requests a waiver from the Commission's competitive bidding and negotiated placement requirements at 18 CFR 34.2.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line 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 31, 2004, Great Lakes Hydro America, LLC, GNE Holding ULC, GNE L.P., GNE GP Inc., GNE Trust, Great Lakes Power Trust, and Great Lakes Hydro Income Fund submitted an application pursuant to section 203 of the Federal Power Act for authorization to complete the proposed intra-corporate reorganization described more fully in the Application.
Take notice that on September 1, 2004, Georgia Power Company (Georgia Power) submitted an application pursuant to section 203 of the Federal Power Act for authorization of a disposition of jurisdictional facilities. Georgia Power states that the transfer will be made pursuant to an Agreement of Exchange which provides for Georgia Power to sell and exchange certain transmission facilities with Georgia Transmission Corporation.
Take notice that on September 3, 2004, InterGen (North America), Inc., Indigo Generation LLC, Larkspur Energy LLC, Wildflower Energy LP and Diamond Generating Corporation (collectively, the Applicants) submitted an application pursuant to section 203 of the Federal Power Act for authorization of an indirect disposition of jurisdictional facilities. Applicants state that the proposed indirect disposition of jurisdictional facilities will occur in connection with the sale by InterGen (North America) to Diamond Generating Corporation of all of its interests in Wildflower Development LLC. Wildflower Development LLC indirectly owns all of the equity interests of Wildflower Energy LP, which owns and operates two gas-fired, simple-cycle, electric generating facilities in Southern California with an approximate 232 MW nameplate generation capacity, through its wholly-owned subsidiaries, Indigo Generation LLC and Larkspur Energy LLC.
Take notice that on September 1, 2004, in compliance with Opinion No. 476 (Consolidated Edison Co. of New York v. Public Service Electric & Gas Co. 108 FERC ¶ 61,120 (2004)), PJM Interconnection, L.L.C. (PJM) submitted a compliance filing certifying that the provisions of the PJM Open Access Transmission Tariff provide the PJM Market Monitoring Unit with the authority necessary to pursue the investigations required by Opinion No. 476, and amending the confidentiality provisions of the Amended and Restated Operating Agreement of PJM.
PJM states that copies of this filing have been served on all PJM members, the utility regulatory commissions in the PJM region, and all persons on the official service list.
Take notice that, on September 1, 2004, the New York Independent System Operator, Inc. (NYISO) submitted a compliance filing pursuant to Opinion No. 476 issued August 2, 2004, in Docket No. EL02-23-000.
The NYISO states that copies of this filing are being served on all parties designated on the official service list maintained by the Secretary of the Commission in these proceedings. The NYISO states that it is also serving a copy of this filing on all parties that have executed Service Agreements under the NYISO's OATT or Services Tariff, the New York State Public Service Commission and to the electric utility regulatory agencies in New Jersey and Pennsylvania.
Take notice that on September 7, 2004, the California Independent System Operator, Inc. (CAISO) submitting a filing requesting a conditional temporary waiver to potentially advance the deadline for submitted Supplemental Energy Bids in accordance with the ISO Tariff.
Take notice that on September 7, 2004, the California Independent System Operator Corporation (ISO) submitted a petition to modify the Transmission Control Agreement (TCA), under which the ISO assumes Operational Control of the transmission facilities that constitute the ISO Controlled Grid. In the alternative, the ISO submitted its pleading as a complaint against the TCA for being unjust and unreasonable and unduly discriminatory if the ISO is precluded from assuming Operational Control of the portion of the upgrade of Path 15 owned by Western Area Power Administration, Sierra Nevada Region (Western).
The ISO states that this filing has been served upon the Public Utilities Commission of the State of California, the California Energy Commission, the California Electricity Oversight Board, the Participating TOs, Western, and all parties with effective Scheduling Coordinator Agreements under the ISO Tariff. In addition, the ISO has posted this filing on the ISO home page.
Take notice that on September 1, 2004, PJM Interconnection, L.L.C. (PJM) pursuant to the Commission's Order issued August 2, 2004, in Docket Nos. ER04-406-004 and 005, submitted revisions to the PJM Open Access Transmission Tariff (PJM Tariff) and the Amended and Restated Operating Agreement of PJM Interconnection, L.L.C. (Operating Agreement) to state that the initial allocation of financial transmission rights in new zones will be filed with the Commission under section 205 of the Federal Power Act. PJM requests an effective date of September 1, 2004, for the proposed revisions.
PJM states that copies of the filing were served on all PJM members, the utility regulatory commissions in the PJM region, and all persons on the Commission's service list for this proceeding.
Take notice that on August 31, 2004, ISO New England Inc. pursuant to the Commission's Order issued June 2, 2004, in Docket Nos. ER03-563-030 and EL04-102-000, submitted a report regarding progress made in the siting, permitting and construction of transmission and generation upgrades within the New England control area.
Take notice that on September 1, 2004, Alabama Power Company (APC), filed with the Federal Energy Regulatory Commission a Notice of Cancellation of its May 5, 2004, filing of the Transmission Facilities Agreement between APC and Georgia Power Company.
Take notice that on September 2, 2004, the California Independent System Operator Corporation (ISO) submitted a supplemental filing to the compliance filing submitted by the ISO on August 10, 2004, in Docket No. ER04-835-002.
The ISO states that this filing has been served upon all parties on the official service list for the captioned docket. In addition, the ISO has posted this filing on the ISO home page.
Take notice that, on September 2, 2004, PPL University Park, LLC submitted a compliance filing pursuant to the Commission's Order issued August 3, 2004, in Docket No. ER04-911-000, 108 FERC ¶ 61,122 (2004).
PPL University Park, LLC states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that on September 3, 2004, PJM Interconnection, L.L.C. (PJM), submitted for filing an amendment to its July 28, 2004, filing of an executed interim interconnection service agreement among PJM, FPL Energy Marcus Hook, L.P., and PECO Energy Company (FPL Interim ISA) to specify how the provisions of the FPL Interim ISA correspond or differ with the form of interim interconnection service agreement in Attachment O-1 of the PJM Open Access Transmission Tariff accepted by the Commission on July 8, 2004, in PJM Interconnection, L.L.C., 108 FERC ¶ 61,025 (2004).
PJM states that copies of this filing were served upon the parties to the agreement and the state regulatory commissions within the PJM region, and all parties on the official service list compiled by the Secretary in this proceeding.
Take notice that on September 2, 2004, Starlight Energy, LP (Starlight) filed a supplement to its application filed on August 16, 2004, in Docket No. ER04-1131-000 for market-based rates as power marketer. Starlight states that the supplemental information provides further information about the owners of Starlight and provides additional information in the tariff sheets regarding Market Behavior Rules.
Take notice that on September 1, 2004, Wisconsin Electric Power Company (Wisconsin Electric) submitted proposed amendments to Exhibit 1 of the Control Area Operations Coordination Agreement between Wisconsin Electric and Wisconsin
Wisconsin Electric states that copies of the filing were served upon Wisconsin Public Service Corporation and the Public Service Commission of Wisconsin.
Take notice that on September 1, 2004, Westar Energy, Inc. (Westar) submitted for filing a Notice of Cancellation for Rate Schedule FERC No. 134, an Electric Interconnection Agreement between Westar and the City of Augusta, Kansas.
Westar states that copies of this filing were served on the City of Augusta, Kansas and the Kansas Corporation Commission.
Take notice that on September 2, 2004, Xcel Energy Services Inc. (XES), on behalf of its affiliates, Public Service Company of Colorado (PSCo) and Southwestern Public Service Company (SPS) submitted changes in rates applicable to the use of the respective transmission systems of PSCo and SPS set forth in Schedules 1, 2, 3, 5, 6, 7 and 8 and Attachment H to the Xcel Energy Open Access Transmission Tariff (Xcel Energy OATT); a new Attachment O to the Xcel Energy OATT that sets forth a formula to be used annually to update rates for transmission service on the PSCo and SPS systems; changes in network transmission service charges recovered under PSCo's power sales contracts applicable to Grand Valley Rural Power Lines, Inc., Intermountain Rural Electric Association, Yampa Valley Electric Association, Inc., the Town of Julesburg, Colorado, the City of Burlington, Colorado, and the Town of Center, Colorado; and changes in rates for network and ancillary services charged to Municipal Energy Association of Nebraska, Tri-State Generation & Transmission Association, Inc. and Cheyenne Light, Fuel & Power Company for use of the PSCo system under the Xcel Energy OATT and Golden Spread Electric Cooperative, Inc. for use of the SPS system under the Xcel Energy OATT.
XES states that it is making this filing to update rates for transmission and ancillary services, to adopt a formula rate approach to determining and keeping current rates for the use of the PSCo and SPS transmission systems, and in compliance with the Commission's March 12, 1997, order in Docket No. ER96-2572-000.
XES states that it has served a copy of this transmittal letter, the revised tariff sheets and statements BG and BH on each of the affected customers. XES further states that it has served a complete copy of the filing on the Colorado Public Utilities Commission, the Public Utility Commission of Texas, the New Mexico Public Regulation Commission, the Oklahoma Corporation Commission and the Kansas Corporation Commission.
Take notice that on September 1, 2004, PJM Interconnection, L.L.C. (PJM) submitted revisions to the PJM Open Access Transmission Tariff and the Amended and Restated Operating Agreement of PJM Interconnection, L.L.C. to establish separate zones for the provision and pricing of regulation and spinning reserves, and to clarify the provisions on load-shedding, to reflect stipulations approved by the State utility regulatory commissions of Kentucky and Virginia in connection with the application of American Electric Power operating companies to transfer control of transmission facilities to PJM.
PJM proposes an effective date of October 1, 2004, for the proposed revisions, to the extent the Commission can issue its order on the tariff revisions before October 1, 2004, and if the Commission does not act before October 1, 2004, PJM proposes that these changes become effective on November 1, 2004.
PJM states that copies of the filing were served on all PJM members and the utility regulatory commissions in the PJM region.
Take notice that on September 2, 2004, Southern California Edison Company (SCE) submitted proposed revisions to SCE's Transmission Owner Tariff, FERC Electric Tariff, Second Revised Volume No. 6, Appendix VI, to increase SCE's Reliability Services Revenue Requirement and Reliability Services rates.
SCE states that copies of the filing were served upon the SCE's jurisdictional customers, the California Public Utilities Commission, the California Electricity Oversight Board, the California Independent System Operator, Pacific Gas and Electric Company, and the San Diego Gas and Electric Company.
Take notice that on September 1, 2004, PacifiCorp submitted a Notice of Cancellation of PacifiCorp's Rate Schedule FERC No. 318 with Brigham City Corporation. PacifiCorp has requested an effective date of October 31, 2004.
PacifiCorp states that copies of the filing were served upon Brigham City Corporation; the Utah Public Service Commission; the Washington Utilities and the Transportation Commission and the Public Utility Commission of Oregon.
Take notice that on September 1, 2004, PJM Interconnection, L.L.C. (PJM) submitted amendments to the PJM Open Access Transmission Tariff to specify that: (1) PJM will post on its OASIS each hour available transfer capability for firm transmission service, (2) requests for reservations of monthly short-term firm transmission service may be made on an hourly basis; and (3) requests for Short-Term Firm Point-To-Point Transmission Service and requests for short-term designations of Network Resources (less than one year) that require the use of interface capacity (known in PJM as Network Designated service) will be processed under the same procedures. PJM requests an effective date of November 1, 2004, for the amendments.
PJM states that copies of the filing were served upon all PJM members and each state electric utility regulatory commission in the PJM region.
Take notice that on September 1, 2004, PJM Interconnection, L.L.C. (PJM) submitted the interim allocation of
PJM proposes an effective date of November 1, 2004, for the allocated FTRs in the DVP zone, corresponding to the DVP integration date.
PJM states that copies of the filing were served on all PJM members and the utility regulatory commissions in the PJM region.
Take notice that on September 1, 2004, KGen Enterprise LLC, KGen Hinds LLC, KGen Hot Spring LLC, KGen Marshall LLC, KGen Murray I and II LLC, KGen New Albany LLC, KGen Sandersville LLC and KGen Southaven LLC (collectively, the Project Companies) filed: (1) Notices of Succession to notify the Commission that, as a result of a name change, each Project Company has succeeded to the respective and corresponding FERC rate schedule of Duke Energy Enterprise, LLC, Duke Energy Hinds, LLC, Duke Energy Hot Spring, LLC, Duke Energy Marshall County, LLC, Duke Energy Murray, LLC, Duke Energy New Albany, LLC, Duke Energy Sandersville, LLC, and Duke Energy Southaven, LLC; and (2) amendments to the rate schedules to reflect the fact that the Project Companies are no longer affiliated with Duke Power (a division of Duke Energy Corporation), Duke Electric Transmission (a division of Duke Energy Corporation), or any other electric utility with a franchised service territory.
Take notice that on September 1, 2004, the New York Independent System Operator, Inc. (NYISO) submitted proposed amendments to its Market Administration and Control Area Services Tariff FERC Electric Tariff Original Volume No. 2, to remove a sunset provision for Demand Reduction Incentive Payments and to increase the minimum bid floor price for Demand Reduction Providers under the NYISO's Incentivized Day-Ahead Economic Load Curtailment Program.
NYISO states that copies of the filing were served upon each person that has executed a Service Agreement under the NYISO's Open Access Transmission Tariff or Market Administration and Control Area Services Tariff, and also upon the electric utility regulatory agencies in New York, New Jersey and Pennsylvania.
Take notice that on September 2, 2004, Bay State GPE, Inc. (Bay State GPE) tendered for filing a Notice of Cancellation of its FERC Rate Schedule No. 1 (market-based rate authority), originally filed in Docket No. ER99-4081-000. Bay State GPE seeks to cancel FERC Rate Schedule No. 1 effective November 1, 2004.
Bay State GPE states that, as it is not regulated by a State commission, has no long-term customers, and has no outstanding market-based rate transactions, it has not served copies of this filing upon any entity.
Take notice that on September 3, 2004, Duke Energy Washington, LLC (Duke Washington) submitted revisions to its FERC Electric Tariff, Original Volume No. 1, specifically enumerating ancillary service products sold into the ancillary service markets operated by PJM Interconnection, L.L.C.; providing for the resale of firm transmission rights and other similar congestion-related contracts; and reflecting the Commission's current language preferences regarding use of an Internet site with respect to the provision of certain ancillary services and obtaining Commission approval for certain affiliate transactions.
Take notice that on September 3, 2004, Duke Energy Hanging Rock, LLC (Duke Hanging Rock) submitted revisions to its FERC Electric Tariff, Original Volume No. 1, specifically enumerating ancillary service products sold into the ancillary service markets operated by PJM Interconnection, L.L.C.; providing for the resale of firm transmission rights and other similar congestion-related contracts; and reflecting the Commission's current language preferences with respect to obtaining Commission approval for certain affiliate transactions.
Take notice that on September 3, 2004, Pacific Gas and Electric Company (PG&E) tendered for filing a partially executed Generator Special Facilities Agreement (GSFA) and a Generator Interconnection Agreement (GIA) between PG&E and Fresno Cogeneration Partners, LP (Fresno) for the Fresno Co-gen Expansion Project.
PG&E states that the GSFA permits it to recover its costs for installing, owning, operating and maintaining Special Facilities on PG&E's Kerman and Helms Substations necessary for the operation of generation from the new Fresno Co-gen Expansion Project. PG&E has requested certain waivers.
PG&E states that copies of this filing were served upon Fresno, the California Independent System Operator, and the California Public Utilities Commission.
Take notice that on September 3, 2004, PJM Interconnection, L.L.C. (PJM) submitted amendments to the PJM Open Access Transmission Tariff and the Amended and Restated Operating Agreement to extend its Emergency Load Response Program and Economic Load Response Program until December 31, 2007. PJM requests an effective date of December 1, 2004, for the amendments.
PJM states that copies of the filing were served upon all PJM members and each State electric utility regulatory commission in the PJM region.
Take notice that on September 3, 2004, SESCO Enterprises Canada Ltd. (SESCO) petitioned the Commission for acceptance of SESCO Rate Schedule No. 1; the granting of certain blanket approvals, including the authority to sell electricity at market-based rates; and the waiver of certain Commission regulations.
SESCO states that it intends to engage in wholesale electric power and energy purchases and sales as a marketer. SESCO further states that it is not in the business of generating or transmitting electric power and its only operating affiliate is also a marketer and is also not in the business of generating or transmitting electric power.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line 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 September 10, 2004, Entergy-Koch, LP and Entergy-Koch Trading, LP (EKT) filed with the Federal Energy Regulatory Commission a joint application pursuant to section 203 of the Federal Power Act for Commission approval of the disposition of jurisdictional facilities. EKT states that the proposed transaction entails the disposition of certain jurisdictional facilities held by EKT, including power purchase and transmission agreements, energy management agreements and related FPA jurisdictional accounts, books and records.
Take notice that on September 10, 2004, Hermiston Generating Company, L.P. (Hermiston ) submitted an application pursuant to section 203 of the Federal Power Act for authorization of a disposition of jurisdictional facilities whereby through a series of transactions Hermiston will transfer and Perennial Power Company, LLC and it affiliate Perennial HGC, Inc. will acquire up to 50 percent ownership interests in Hermiston. Hermiston states that it owns an undivided 50 percent interest in a 475 MW multi-unit, natural gas-fired combined cycle generating plant with automatic generation control and related transmission and interconnection equipment, located near Hermiston, Oregon. Hermiston requests privileged treatment of Exhibit I of the Application.
Take notice that on September 9, 2004, PJM Interconnection, L.L.C. (PJM), in compliance with the Commission's order issued August 10, 2004,
PJM states that copies of this filing have been served on all PJM members, the utility regulatory commissions in the PJM region, and all persons on the official service list compiled by the Secretary in this proceeding.
Take notice that on September 8, 2004, Duke Energy Corporation, on behalf of Duke Electric Transmission, submitted a compliance filing pursuant to the Commission's letter order issued August 30, 2004 in Docket No. ER04-993-000.
Take notice that on September 8, 2004, Choice Energy Services, L.P. (Choice) filed an amendment to its petition filed July 15, 2004 for acceptance of Choice's Rate Schedule FERC No. 1; the granting of certain blanket approvals, including the authority to sell electricity at market-based rates; and the waiver of certain Commission regulations.
Choice states that it intends to engage in wholesale electric power and energy purchases and sales as a marketer. Choice further states it is not in the business of generating or transmitting electric power.
Take notice that on September 8, 2004, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted an Interconnection and Operating Agreement among Hawkeye Power Partners, LLC, Interstate Power and Light Company, a wholly-owned subsidiary of Alliant Energy Corporation, and the Midwest ISO.
Take notice that on September 8, 2004, Portland General Electric Company (PGE) tendered for filing new and revised tariff sheets to its Open Access Transmission Tariff incorporate the Large Generator Interconnection Procedures and Large Generator Interconnection Agreement in accordance with FERC Order No. 2003-A. PGE requests an effective date of November 8, 2004 for the requested changes.
PGE states that copies of this filing were supplied to the Public Utility Commission of Oregon, PGE's Network Customers and the Docket No. RM02-1-001 service list.
Take notice that on September 8, 2004, Deseret Generation & Transmission Co-operative, Inc. (Deseret) tendered for filing an amendment to First Revised Service Agreement No. 4 under Deseret's FERC Electric Tariff, Original Volume 1. Deseret states that the amendment includes an Acquired Retail Load Rider Between Deseret and Garkane Energy Cooperative, Inc. dated August 31, 2004, that provides for the provision of electric energy and capacity by Deseret to Garkane for retail loads of Kanab City, Utah. Deseret requests an effective date of September 1, 2004.
Deseret states that copies of this filing have been served upon Deseret's member cooperatives.
Take notice that on September 8, 2004, Oregon Electric Utility Company (OEUC), Portland General Electric Company (PGE) and Portland General Term Power Procurement Company (PPC) petitioned the Commission for approvals necessary to enable OEUC to restructure PGE's wholesale energy procurement activity, specifically: (1) Acceptance of PPC's Rate Schedules FERC No. 1 and FERC No. 2; (2) acceptance of PGE's Rate Schedule FERC No. 14; (3) the granting of certain blanket approvals, including the authority for PPC to sell electricity at market-based rates; and (4) the waiver of certain Commission regulations.
Take notice that on September 9, 2004, Black Hills Power, Inc. submitted to the Commission a Notice of Succession adopting all applicable rate schedules, service agreements, tariffs and supplements thereto previously filed with the Commission by Black Hills Power and Light Company and Black Hills Corporation.
Take notice that on September 9, 2004, Southern California Edison Company (SCE) submitted proposed revisions to SCE's Transmission Owner Tariff, FERC Electric Tariff, Second Revised Volume No. 6, to implement new reliability procedure.
SCE states that copies of the filing were served upon the SCE's jurisdictional customers, the California Public Utilities Commission, the California Electricity Oversight Board, the California Independent System Operator, Pacific Gas and Electric Company, and the San Diego Gas and Electric Company.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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l. The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
m. The application is not ready for environmental analysis at this time.
n. The proposed Whitman Lake Hydroelectric Project will have an installed generating capacity of 4.6 Megawatts with a maximum hydraulic capacity of 180 cubic feet per second (cfs). The proposed project would consist of the following features: (1) The existing 39-foot-high, 220-foot-long concrete gravity arch dam; (2) 40-foot-wide Ogee spillway within the dam; (3) a 148 surface acre reservoir (Whitman Lake); (4) a 2,450-foot-long, 45-inch-diameter steel penstock; (5) a 2,000-foot-long, 21-inch-diameter pipeline; (6) a turbine and 3,900 kW generator, with a hydraulic capacity of 150 cfs; (7) a turbine and 700 kW generator, with a hydraulic capacity of 30 cfs and (8) other appurtenant facilities.
Ketchikan Public Utilities (KPU) estimates that the average annual generation will be 16,225 megawatthours (MWh). KPU proposes to use the project to supplement, as well as displace, other generation resources owned and operated by KPU. With the construction and operation of the project, KPU hopes to minimize its use and dependency on fossil fuel generation.
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
p. With this notice, we are initiating consultation with the Alaska State Historic Preservation Officer (SHPO), as required by § 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36, CFR, at § 800.4.
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please include the project number (P-12493-000) on any comments, protest, or motions filed.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (
o. Competing Development Application—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with18 CFR 4.30(b) and 4.36.
p. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
q. Proposed Scope of Studies Under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
r. Comments, Protests, or Motions To Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper;
s. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
t. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application and applicant-prepared environmental assessment has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, and final recommendations, terms and conditions, and prescriptions is 60 days from the issuance of this notice; reply comments are due 105 days from the issuance date of this notice.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments and final recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
k. This application has been accepted for filing.
l.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
n. All filings must (1) bear in all capital letters the title “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
In the Notices of Technical Conference issued August 27, 2004 and September 8, 2004, the Federal Energy Regulatory Commission announced that it would host a technical conference on Friday, September 24, 2004 to discuss a petition for rulemaking submitted by the American Wind Energy Association (AWEA) related to the adoption of certain requirements for the interconnection of large wind generators.
In those notices parties interested in speaking at the conference were asked to file their requests through an on-line form on the FERC Web site. However, technical difficulties resulted in the loss of information from several speaker requests.
Parties who filed speaker requests are therefore asked to resubmit their requests by contacting Sarah McKinley at (202) 502-8368 or at
Southeastern Power Administration, DOE.
Notice of rate order.
The Deputy Secretary of the Department of Energy, confirmed and approved, on an interim basis, Rate Schedules JW-1-H and JW-2-E. The rates were approved on an interim basis through September 19, 2009, and are subject to confirmation and approval by the Federal Energy Regulatory Commission (Commission) on a final basis.
Approval of rate on an interim basis is effective through September 19, 2009.
Leon Jourolmon, Assistant Administrator, Finance & Marketing, Southeastern Power Administration, Department of Energy, 1166 Athens Tech Road, Elberton, Georgia 30635-6711, (706) 213-3800.
The Commission, by Order issued April 2, 2003, in Docket No. EF02-3031-000, confirmed and approved Wholesale Power Rate Schedules JW-1-G and JW-2-D. Rate schedules JW-1-H and JW-2-E replace these schedules.
In the Matter of: Southeastern Power Administration; Jim Woodruff Project Power Rates;
Pursuant to sections 302(a) and 301(b) of the Department of Energy Organization Act, Public Law 95-91, the functions of the Secretary of the Interior and the Federal Power Commission under section 5 of the Flood Control Act of 1944, 16 U.S.C. 825s, relating to the Southeastern Power Administration (Southeastern) were transferred to and vested in the Secretary of Energy. By Delegation Order No. 00-037.00 (December 6, 2001), the Secretary of Energy delegated to the Administrator of Southeastern the authority to develop power and transmission rates, and delegated to the Deputy Secretary of the Department of Energy the authority to confirm, approve, and place in effect such rates on an interim basis and delegated to the Federal Energy Regulatory Commission (Commission) the authority to confirm and approve on a final basis or to disapprove rates developed by the Administrator under the delegation. This rate order is issued by the Deputy Secretary pursuant to said delegation.
Power from the Jim Woodruff Project is presently sold under Wholesale Power Rate Schedules JW-1-G and JW-
Southeastern prepared a Power Repayment Study, dated March 2004, that showed that revenues at current rates were not adequate to meet repayment criteria. A revised study with a revenue increase of $2,182,000 produced rates that are adequate to meet repayment criteria in Fiscal Years 2005, 2006, and 2007. On March 31, 2004, by
The following comments were received during the public comment period. Southeastern's response follows each comment.
The stated reason for this increase is the cost associated with the purchase of supplies and materials increased in Fiscal Year 2003 by $455,000. Southeastern has failed to justify this calculation. Therefore, recovery of these amounts is arbitrary and capricious in the absence of an explanation.
(1) The proposed rate does not explain why Southeastern has declined to invoke the provision of DOE Regulation RA 6120.2 to ensure the lowest possible rate consistent with sound business principles;
(2) The calculation of estimated purchased energy and capacity costs is based on historical data the Customers do not believe is indicative of expected performance by the project;
(3) The Corps O&M costs have not been justified in the case of future recoveries for inflated joint costs allocable to maintenance.
Southeastern believes its estimate of purchased energy and capacity costs is appropriate considering the operations of the project and the contract with Florida Power Corporation. If conditions warrant, Southeastern will consider implementation of a pass-through charge for purchased energy and support capacity as discussed in Response 4.
Southeastern relies on the Corps to provide estimates of Corps O&M. The variance of O&M estimates provided by the Corps to actual costs incurred has not been significant as discussed in Response 5.
An examination of Southeastern's revised system power repayment study, prepared in March 2004, for the Jim Woodruff Project, shows that with the proposed rates, all system power costs are paid within the 50-year repayment period required by existing law and DOE Procedure RA 6120.2. The Administrator of Southeastern has certified that the rates are consistent with applicable law and that they are the lowest possible rates to customers consistent with sound business principles.
Southeastern has reviewed the possible environmental impacts of the rate adjustment under consideration and has concluded the adjusted rates would not significantly affect the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. The proposed action is not a major Federal action for which preparation of an Environmental Impact Statement is required.
Information regarding these rates, including studies, and other supporting materials is available for public review in the offices of Southeastern Power Administration, 1166 Athens Tech Road, Elberton, Georgia 30635-6711.
The rates hereinafter confirmed and approved on an interim basis, together with supporting documents, will be submitted promptly to the Commission for confirmation and approval on a final basis for a period beginning September 20, 2004, and ending no later than September 19, 2009.
In view of the foregoing and pursuant to the authority delegated to me by the Secretary of Energy, I hereby confirm and approve on an interim basis, effective September 20, 2004, attached Wholesale Power Rate Schedules JW-1-H and JW-2-E. The rate schedules shall remain in effect on an interim basis through September 19, 2009, unless such period is extended or until the Federal Energy Regulatory Commission confirms and approves them or substitute rate schedules on a final basis.
Dated: September 9, 2004.
This rate schedule shall be available to public bodies and cooperatives (the Customers) served by the Florida Power Corporation and having points of delivery within 150 miles of the Jim Woodruff Project (Project).
This rate schedule shall be applicable to firm power and accompanying energy made available by the Government from the Project and sold in wholesale quantities.
The electric capacity and energy supplied hereunder will be 3-phase alternating current at a nominal frequency of 60 cycles per second delivered at the delivery points of the customer.
The monthly rate for capacity and energy made available or delivered under this rate schedule shall be:
$6.95 per kilowatt of monthly contract demand.
19.95 mills per kilowatt-hour.
The monthly billing demand for any billing month shall be the lower of (a) The Customer's contract demand or (b) the sum of the maximum 30-minute integrated demands for the month at each of the Customer's points of delivery; provided, that, if an allocation of contract demand to delivery points has become effective, the 30-minute maximum integrated demand for any point of delivery shall not be considered to be greater than the portion of the Customer's contract demand allocated to that point of delivery.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
During any billing month in which the Government supplies all the Customer's capacity requirements for a particular delivery point, the Government will make available the total energy requirement of said point. When both the Government and the Florida Power Corporation are supplying capacity to a delivery point, each kilowatt of capacity supplied to such point during such month will be considered to be accompanied by an equal quantity of energy.
The billing month for power sold under this schedule shall end at 12 (midnight) on the 20th day of each calendar month.
The customer shall, at its own expense, provide, install, and maintain on its side of each delivery point the equipment necessary to protect and control its own system. In so doing, the installation, adjustment, and setting of all such control and protective equipment at or near the point of delivery shall be coordinated with that
When energy delivered to the Customer's system for the account of the Government is reduced or interrupted for one hour or longer, and such reduction or interruption is not due to conditions on the Customer's system or has not been planned and agreed to in advance, the demand charge for the month shall be appropriately reduced.
This rate schedule shall be available to the Florida Power Corporation (hereinafter called the Company).
This rate schedule shall be applicable to electric energy generated at the Project and sold to the Company in wholesale quantities.
Power sold to the Company by the Government will be delivered at the connection of the Company's transmission system with the Project bus.
Electric power delivered to the Company will be 3-phase alternating current at a nominal frequency of 60 cycles per second.
The monthly rate for energy sold under this schedule shall be equal to 90 percent of the calculated saving in the cost of fuel per kilowatt-hour (KWh) to the Company determined as follows:
Energy will be furnished by the Company to supply any excess of Project use over Project generation. Energy so supplied by the Company will be deducted from the actual deliveries to the Company's system to determine the net deliveries for energy accounting and billing purposes. Energy for Project use shall consist of energy used for station service, lock operation, Project yard, village lighting, and similar uses.
The on-peak hours shall be the hours between 7 a.m. and 11 p.m., Monday through Sunday, inclusive. Off-peak hours shall be all other hours.
All energy made available to the Company shall, to the extent required, be classified as energy transmitted to the Government's preference customers served from the Company's system. All energy made available to the Company from the Project shall be separated on the basis of the metered deliveries to it at the Project during on-peak and off-peak hours, respectively. Deliveries to preference customers of the Government shall be divided on the basis (with allowance for losses) of 77 percent being considered as on-peak energy and 23 percent being off-peak energy. Such percentages may by mutual consent be changed from time to time as further studies show to be appropriate. In the event that in classifying energy there is more than enough on-peak energy available to supply on-peak requirements of the Government's preference customers but less than enough off-peak energy available to supply such customers off-peak requirements, such excess on-peak energy may be applied to the extent necessary to meet off-peak requirements of such customers in lieu of purchasing deficiency energy to meet such off-peak requirements.
The billing month under this schedule shall end at 12 (midnight) on the 20th day of each calendar month.
The purchaser and seller under this rate schedule agree that they will both so operate their respective systems that neither party will impose an undue reactive burden on the other.
Environmental Protection Agency (EPA).
Notice of teleconference meetings.
The Environmental Protection Agency's Environmental Laboratory Advisory Board (ELAB), as previously announced, will have teleconference meetings on October 20, 2004 at 1 p.m. e.s.t.; November 17, 2004 at 1 p.m. e.s.t.; December 15, 2004 at 1 p.m. e.s.t.; and January 19, 2005 at 1 p.m. e.s.t. to discuss the ideas and views presented at the previous ELAB meetings, as well as new business. Items to be discussed by ELAB over these coming meetings include: Expanding the number of laboratories seeking NELAC accreditation; homeland security issues affecting the laboratory community; ELAB support to Agency's Forum on Environmental Measurements (FEM); implementing the performance approach; increasing state participation in NELAC; and follow-up on some of ELAB's past recommendations and issues. In addition to these teleconferences, ELAB will be hosting their next face-to-face meeting on February 2, 2005 at the Sheraton Society Hill in Philadelphia, Pennsylvania.
Written comments on laboratory accreditation issues and/or environmental monitoring issues are encouraged and should be sent to Ms. Lara P. Autry, DFO, U.S. EPA (E243-05), 109 T. W. Alexandar Drive, Research Triangle Park, NC 27709, faxed to (919) 541-4261, or e-mailed to
Notice of a partially open meeting of the Board of Directors of the Export-Import Bank of the United States.
Thursday, September 23, 2004 at 9:30 a.m. The meeting will be held at Ex-Im Bank in Room 1141, 811 Vermont Avenue, NW., Washington, DC 20571.
PEFCO Secured Note Issues Resolutions.
The meeting will be open to public participation for Item No. 1 only.
For further information, contact: Office of the Secretary, 811 Vermont Avenue, NW., Washington, DC 20571 (Telephone No. (202) 565-3957).
The 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(s), 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 Paperwork Reduction Act (PRA) comments should be submitted on or before October 20, 2004. 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 contacts listed below as soon as possible.
Direct all PRA comments to Kristy L. LaLonde, Office of Management and Budget, Room 10234 NEOB, Washington, DC 20503, (202) 395-3087, or via fax at 202-395-5167 or via internet at
For additional information or copies of the information collections contact Judith B. Herman at 202-418-0214 or via Internet at
The Commission has requested emergency OMB processing review of this new information collection with an OMB approval by September 30, 2004.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 14, 2004.
Board of Governors of the Federal Reserve System, September 14, 2004.
Department of Health and Human Services, Office of the Secretary.
Notice of meeting.
Pursuant to Section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given that the Secretary's Advisory Committee on Human Research Protections (SACHRP) will hold its fourth meeting. The meeting will be open to the public.
The meeting will be held on Monday, October 4, 2004, from 8:30 a.m. to 5 p.m., and on Tuesday, October 5, 2004, from 8:30 a.m. to 5 p.m.
The Raddison Hotel Old Town Alexandria, 900 North Fairfax Street; Alexandria, VA 22314.
Bernard Schwetz, D.V.M., Ph.D., Director, Office for Human Research Protections (OHRP), or Catherine Slatinshek, Executive Director, Secretary's Advisory Committee on Human Research Protections; Department of Health and Human Services, 1101 Wootton Parkway, Suite 200; Rockville, MD 20852; (301) 496-7005; fax: (301) 496-0527; email address:
Under the authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, SACHRP was established to provide expert advice and recommendations to the Secretary of Health and Human Services and the Assistant Secretary for Health on issues and topics pertaining to or associated with the protection of human research subjects.
On October 4, 2004, SACHRP will receive and discuss preliminary reports from its two subcommittees, the Subpart C Working Group (HHS regulations and policies for research involving prisoners) and the Subpart D Working Group (HHS regulations and policies for research involving children). The subcommittees were established by SACHRP at its meeting held on July 22, 2003, to provide assistance in addressing issues related to the specified topics. The Committee also will receive an update from OHRP staff on Subpart B issues.
On October 5, 2004, SACHRP will assemble three panels of experts to discuss the following issues: (1) The application of Subpart A in the current research environment; (2) the relationship between public health surveillance activities and research, the relationship between quality assurance/quality improvement activities, and research as defined in the HHS regulations for the protection of human subjects at 45 CFR 46.102(d); (3) and issues related to central IRBs.
Public attendance at the meeting is limited to space available. Individuals who plan to attend the meeting and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the designated contact persons. Members of the public will have opportunity to provide comments on both days of the meeting. Public comment will be limited to five minutes per speaker. Any members of the public who wish to have printed material distributed to SACHRP members for this scheduled meeting should submit materials to the Executive Director, SACHRP, prior to the close of business on September 29, 2004.
Information about SACHRP and the draft meeting agenda will be posted on the SACHRP Web site at
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), NCEH/ATSDR announces the following subcommittee meeting:
This conference call is scheduled to begin at 12:30 p.m. eastern standard time. To participate in the teleconference, please dial (877) 315-6535 and enter conference code 383520.
Sandra Malcom, Committee Management Specialist, Office of Science, NCEH/ATSDR, M/S E-28, 1600 Clifton Road, NE., Atlanta, Georgia 30333, telephone 404/498-0003.
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirements of Section 3506(c)(2)(A) of the paperwork Reduction Act of 1995, the Administration for Children and families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Office of Management and Budget, Paperwork Reduction Project, Attn: Desk Officer for ACF, 725 17th Street, NW., Washington, DC 20503, E-mail address:
This notice amends Part K of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (HHS), Administration for Children and Families (ACF) as follows: Chapter KC.00, Chapter KC.10, Chapter KC.20 Paragraph B, and Chapter KC.20 Paragraph C, the Administration on Developmental Disabilities (ADD) (69 FR 35378-79), as last amended June 24, 2004. Chapters KC.00 and KC.20 Paragraph C are amended to replace outdated references to University Affiliated Programs with references to the current grant program, University Centers for Excellence in Developmental Disabilities. Chapters KC.00 and KC.20 Paragraph B are amended to more fully describe the grant programs that ADD will administer under the Help America Vote Act. Chapter KC.20 Paragraph B is also amended to delete outdated references to the Basic State Grants program. Chapters KC.10 and KC.20 Paragraph C are amended to reflect the new name of the Office of Operations and Discretionary Grants. This notice reflects ADD's responsibilities in implementing election assistance for individuals with disabilities under the Help America Vote Act of 2002 (HAVA), Pub. L. 107-252, 116 Stat. 1666 (2002). The authority to administer HAVA was delegated to the Assistant Secretary, ACF, by the Secretary on February 9, 2004, and subsequently redelegated to the Commissioner, Administration on Developmental Disabilities by the Assistant Secretary, ACF, on April 2, 2004. In addition, it establishes the Office of Programs and the Office of Operations and Discretionary Grants, eliminates the Deputy Commissioner position, and moves the Administration and Planning Staff and their functions to the newly established Office of Operations and Discretionary Grants. This notice is being republished in its entirety for the convenience of the reader.
These Chapters are amended as follows:
A. Delete KC.00 Mission in its entirety and replace with the following:
KC.00 Mission. The Administration on Developmental Disabilities advises the Secretary, through the Assistant Secretary for Children and Families, on matters relating to individuals with developmental disabilities and their families. ADD serves as the focal point in the Department to support and encourage the provision of quality services to individuals with developmental disabilities and their families. ADD assists states, through the design and implementation of comprehensive and continuing state plans, to increase the independence, productivity and community inclusion of individuals with developmental disabilities. These state plans make optimal use of existing federal and state resources for the provision of services and supports to these individuals and their families to achieve these outcomes. ADD works with the states to ensure that the rights of all individuals with developmental disabilities are protected.
ADD administers two formula grant programs under the Developmental Disabilities Assistance and Bill of Rights Act (the DD Act), the State Councils on Developmental Disabilities and the Protection and Advocacy Systems, and two discretionary grant programs, University Centers for Excellence in Developmental Disabilities and Projects of National Significance grant programs, including family support grants. These programs support the provision of services to individuals with developmental disabilities and their families. In concert with other components of ACF as well as other public, private, and voluntary sector partners, ADD supports research, demonstration and evaluation activities designed to improve and enrich the lives of individuals with developmental disabilities. In addition, ADD serves as a resource in the development of policies and programs to reduce or eliminate barriers experienced by individuals with developmental disabilities through the identification of promising practices and dissemination of information. ADD manages initiatives involving the private and voluntary sectors that benefit individuals with developmental and other disabilities and their families.
ADD also manages and administers three grant programs authorized by HAVA. Two are formula grant programs: State and Local Grants for Election Assistance for Individuals with Disabilities (EAID) to improve access to polling places for individuals with disabilities, and Grants to Protection and Advocacy Systems to ensure full participation in the voting process for voters with disabilities. The third is a discretionary grant program for training and technical assistance for Protection
B. Delete KC.10 Organization in its entirety and replace with the following:
KC.10 Organization. The Administration on Developmental Disabilities is headed by a Commissioner who reports directly to the Assistant Secretary for Children and Families. The Administration on Developmental Disabilities consists of:
• The Office of the Commissioner (KCA).
• The Office of Programs (KCB).
• The Office of Operations and Discretionary Grants (KCC).
C. Delete KC.20 Functions, paragraph A in its entirety and replace with the following:
KC.20 Functions. A. The Office of the Commissioner serves as the principal advisor to the Assistant Secretary for Children and Families, the Secretary, and other elements of the Department for individuals with developmental disabilities. The Office provides executive direction and management strategy to ADD's components and establishes goals and objectives for ADD programs.
In coordination with the ACF Office of Public Affairs, the Office of the Commissioner develops a strategy for increasing public awareness of the needs of individuals with developmental disabilities and programs designed to address them.
D. Delete KC.20 Functions, paragraph B in its entirety and replace with the following:
B. The Office of Programs is responsible for the coordination, management and evaluation of the State Councils on Developmental Disabilities grant program and the Protection and Advocacy grant program, including the development of procedures and performance standards that ensure compliance with the Developmental Disabilities Assistance and Bill of Rights Act (DD Act) and improve the outcomes of State Councils on Developmental Disabilities and Protection and Advocacy Systems in increasing the independence, productivity and community inclusion of persons with developmental disabilities.
The Office of Programs also administers two formula grants under the Help America Vote Act (State and Local Grants for Election Assistance for Individuals with Disabilities and Grants to Protection and Advocacy Systems) that improve accessibility for individuals with the full range of disabilities, including the blind and visually impaired, to polling places, including the path of travel, entrances, exits and voting facilities. The Office also administers a training and technical assistance grant program under the Help America Vote Act that provides technical assistance to Protection and Advocacy Systems in their mission to promote the full participation in the electoral process for individuals with the full range of disabilities, including registering to vote, casting vote, and accessing polling places.
The Office of Programs conducts routine and special analyses of state plans of State Councils on Developmental Disabilities and statements on the goals and objectives of State Protection and Advocacy Systems, including an examination of priority area activities, to assure consistent application of ADD program goals and objectives. The Office conducts reviews of programs to ensure compliance with the DD Act to improve program outcomes, and identifies and disseminates information regarding promising practices to advance the independence, productivity and community inclusion of people with developmental disabilities.
The Office of Programs initiates, executes and supports the development of interagency, intergovernmental and public-private sector agreements, committees, task forces, commissions or joint-funding efforts as appropriate.
The Office of Programs provides program and administrative guidance to regional offices on matters related to the implementation of the State Councils on Developmental Disabilities and Protection and Advocacy Systems grant programs and ensures timely and effective communication with the regional offices regarding program compliance, policy clarification and the approval of required state plans and reports.
E. Delete KC.20 Functions, paragraph C in its entirety and replace with the following:
C. The Office of Operations and Discretionary Grants plans, coordinates and controls ADD policy, planning and management activities which include the development of legislative proposals, regulations and policy issuances for ADD. The Office manages the formulation and execution of the program and operating budgets; provides administrative, personnel and information systems support services; serves as the ADD Executive Secretariat controlling the flow of correspondence; and coordinates with appropriate ACF components in implementing administrative requirements and procedures. The Office also coordinates interagency collaboration and program outreach activities.
The Office of Operations and Discretionary Grants also manages the discretionary grants and contracts mandated by the DD Act, and provides program development services. The Office originates and manages cross-cutting research, demonstration and evaluation initiatives with other components of ADD, ACF, HHS and other government agencies; and monitors and evaluates discretionary grants under the Projects of National Significance discretionary grant program and the University Centers for Excellence in Developmental Disabilities grant program.
The Office of Operations and Discretionary Grants provides program and administrative guidance to regional offices on matters related to the implementation of the Projects of National Significance discretionary grant program and the University Centers for Excellence in Developmental Disabilities grant program.
The Office of Operations and Discretionary Grants develops and initiates guidelines, policy issuances and actions with team participation by other components of ADD, ACF, HHS and other government agencies to fulfill the mission and goals of the DD Act, as amended. The Office ensures the dissemination of project results and information produced by ADD grantees.
Through the Projects of National Significance discretionary grant program, the Office of Operations and Discretionary Grants coordinates information sharing and other activities related to national program trends with other ACF programs and HHS agencies and studies, reviews and analyzes other federal programs providing services applicable to persons with developmental disabilities for the purpose of integrating and coordinating program efforts.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Application for Participation in the Medical Device Fellowship Program” 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 an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by November 19, 2004.
Submit electronic comments on the collection of information to
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA'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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Collecting applications for the MDFP will allow FDA's Center for Devices and Radiological Health (CDRH) to easily and efficiently elicit and review information from students and health care professionals who are interested in becoming involved in CDRH activities. The process will reduce the time and cost of submitting written documentation to the agency and lessen the likelihood of applications being misrouted within the agency mail system. It will assist the agency in promoting and protecting the public health by encouraging outside persons to share their expertise with CDRH.
FDA estimates the burden of this collection of information as follows:
FDA based these estimates on the number of inquiries that have been received about the program and requests for application forms over the past year. We anticipate the number of interested individuals and universities, and subsequent number of applications, to increase as we continue to develop an outreach program and an alumni base.
In addition, we would expect applicants who are not selected for their preferred term of employment to reapply at a later date. For these reasons we would expect that the number of applications submitted in the second and third years would increase substantially. During the first year, we expect to receive 100 applications. We believe that we will receive approximately 100 applications the second year and 100 applications the third year. FDA believes it will take individuals 1 hour to complete the application. This is based on similar applications submitted to FDA.
National Institutes of Health, Public Health Service, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent listed below may be obtained by contacting Marlene Shinn-Astor, J.D., Technology Licensing Specialist, at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/435-4426; fax: 301/402-0220; e-mail:
Dysregulations of neuroendocrine stress responses have profound effects on the immune system that are associated with various autoimmune/inflammatory disorders such as rheumatoid arthritis (RA) and psychiatric conditions such as depression and post traumatic stress disorder (PTSD). Inventors from NIMH had previously found that the hypothalamic pituitary adrenal (HPA) hormonal axis, which acts as a regulatory checkpoint between the neuroendocrine and the immune system, is dysregulated in such disorders. Further research now shows that in particular, dysregulation in the secretion of corticotropin releasing hormone (CRH) from the hypothalamus contributes to these conditions. Therefore, the HPA axis, CRH and CRH receptors can serve as major targets for drug development and diagnosis of these diseases.
This patent covers the development of therapeutics and diagnostics for autoimmune/inflammatory diseases that affect millions of people. The patent proposes the use of a wide variety of classes of HPA axis active agents to treat inflammatory illnesses. The patent claims specifically predict that an HPA agonist can be used to treat arthritis. The usefulness and applicability of the patent also extends to the CRH receptor antagonists (
Currently, such predictive approaches are not used routinely in clinical settings. The potential of this invention to diagnose and treat certain diseases in a predictive fashion makes it an excellent candidate for simultaneously developing therapeutics and the associated diagnostics. Antalarmin—which is being developed through an NIH initiative—has passed preliminary assessment at the FDA and will soon be in phase I human trials. The inventors found Antalarmin to be effective in reducing clinical arthritis score in rats by 50%, possibly through its blockade of CRH's peripheral pro-inflammatory effects.
Given that an estimated 43 million people in the United States alone have arthritis or other rheumatic conditions, and that this number is expected to reach 60 million by 2020, this patent holds great potential in further development of therapeutics and diagnostics for autoimmune/inflammatory diseases.
Notice is hereby given of a change in the meeting of the National Cancer
This meeting is amended to change the start time on September 29, 2004 to 9 a.m. and the location to Sheraton Suites Alexandria, 801 North Asaph Street, Alexandria, VA 22314. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), a notice is hereby given of the following meeting.
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 the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The 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 meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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 a meeting of the Board of Scientific Counselors, NIDCD.
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 intramural programs and projects conducted by the National Institute on Deafness and Other Communication Disorders, 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.
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 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 meterial, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable, material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial
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 meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice if hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, September 28, 2004, 1 p.m. to September 28, 2004, 2 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 which was published in the
The meeting will be held September 30, 2004. The meeting time and location remain the same. The meeting is closed to the public.
The National Institutes of Health (NIH) announces the persons who will serve on the NIH's Senior Executive Service Performance Review Board. This action is being taken in accordance with Title 5, U.S.C., Section 4314(c)(4), which requires that members of performance review boards be appointed in a manner to ensure consistency, stability, and objectivity in performance appraisals, and requires that notice of the appointment of an individual to serve as a member be published in the
The following persons will serve on the NIH Performance Review Board, which oversees the evaluation of performance appraisals of NIH Senior Executive Service (SES) members:
For further information about the NIH Performance Review Board, contact the Office of Human Resources, Workforce Relations Division, National Institutes of Health, Building 31, Room B3C07, Bethesda, Maryland 20892, telephone (301) 496-1443 (not a toll-free number).
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 Florida (FEMA-1539-DR), dated August 13, 2004, and related determinations.
August 30, 2004.
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 30, 2004.
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-1545-DR), dated September 4, 2004, and related determinations.
September 7, 2004.
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 areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of September 4, 2004:
Alachua, Clay, Duval, Flagler, Hendry, Putnam, Seminole, St. Johns, and Volusia Counties for Individual Assistance (already designated for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program and direct Federal assistance at 100 percent Federal funding of the total eligible costs for the first 72 hours.)
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-1545-DR), dated September 4, 2004, and related determinations.
September 9, 2004.
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 areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of September 4, 2004:
Charlotte, Columbia, DeSoto, Dixie, Gilchrist, Hardee, Hillsborough, Levy, and Marion for Individual Assistance (already designated for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program and direct Federal assistance at 100 percent Federal funding of the total eligible costs for the first 72 hours.)
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-1545-DR), dated September 4, 2004, and related determinations.
September 10, 2004.
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 areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of September 4, 2004:
Baker, Bradford, Lee, Nassau, Pinellas, and Union Counties for Individual Assistance (already designated for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program and direct Federal assistance at 100 percent Federal funding of the total eligible costs for the first 72 hours.)
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 State of North Carolina (FEMA-1546-DR), dated September 10, 2004, and related determinations.
September 10, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated September 10, 2004, 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 State of North Carolina, resulting from Tropical Storm Frances beginning on September 7, 2004, 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 State of North Carolina.
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 Individual Assistance and assistance for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program in the designated areas, and Hazard Mitigation statewide, and any
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance, Hazard Mitigation, and the Other Needs Assistance under Section 408 of the Stafford Act will be limited to 75 percent of the total eligible costs. For the first 72 hours, you are authorized to fund assistance for debris removal and emergency protective measures at 100 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 time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
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, Justin DeMello, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of North Carolina to have been affected adversely by this declared major disaster:
The counties of Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Jackson, Madison, McDowell, Mitchell, Polk, Rutherford, Transylvania, Watauga, and Yancey for Individual Assistance.
The counties of Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Jackson, Madison, McDowell, Mitchell, Polk, Rutherford, Transylvania, Watauga, and Yancey for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program at 100 percent Federal funding of the total eligible costs for the first 72 hours. Direct Federal assistance is authorized.
All counties within the State of North Carolina are eligible to apply for assistance under the Hazard Mitigation Grant 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 Commonwealth of the Northern Mariana Islands (FEMA-1541-DR), dated August 26, 2004, and related determinations.
September 7, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
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, Michael Karl, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
This action terminates my appointment of William Lokey as Federal Coordinating Officer for this disaster.
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 Commonwealth of Virginia (FEMA-1544-DR), dated September 3, 2004, and related determinations.
September 8, 2004.
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 September 8, 2004.
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, the Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD) for the South Powder River Basin Coal Final Environmental Impact Statement (FEIS); West Roundup Lease by Application (LBA) Tract.
The document will be available electronically on the following Web site:
• Bureau of Land Management, Wyoming State Office, 5353 Yellowstone Road, Cheyenne, Wyoming.
• Bureau of Land Management, Casper Field Office, 2987 Prospector Drive, Casper, Wyoming.
Mr. Bob Janssen, Wyoming Coal Coordinator, (307) 775-6206 or Ms. Mavis Love, Land Law Examiner, (307) 775-6258. Both Mr. Janssen's and Ms. Love's offices are located at the BLM Wyoming State Office, 5353 Yellowstone Road, Cheyenne, Wyoming 82009.
As stated in the FEIS, a ROD will be issued for each of the five Federal coal tracts considered for leasing in the South Powder River Coal FEIS. The ROD covered by this NOA is for coal tract West Roundup (WYW151134) and addresses leasing an estimated 319.4 million tons of in-place Federal coal administered by the BLM Casper Field Office underlying approximately 1,789.66 acres of private surface and 1,022.85 acres of Federal surface land in Campbell County, Wyoming. The ROD approves Alternative 3 as the selected alternative. A competitive lease sale will be announced in the
Because the Assistant Secretary of the Interior, Lands and Minerals Management, has concurred in this decision, it is not subject to appeal to the Interior Board of Land Appeals as provided in 43 CFR Part 4. This decision is the final action of the Department of the Interior.
Bureau of Land Management, Interior.
Notice of filing of plat of survey; Minnesota.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM-Eastern States, Springfield, Virginia, 30 calendar days from the date of publication in the
Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153. Attn: Cadastral Survey.
This survey was requested by the Bureau of Indian Affairs.
The lands we surveyed are:
The plat of survey represents the dependent resurvey of a portion of the north and south boundaries, a portion of the subdivisional lines, a corrective dependent resurvey of a portion of a subdivision line, and the dependent resurvey and survey of the subdivision of sections 1—3, 11—14, 19—21, 23—25, 33, and 36, Township 142 North, Range 40 West, Fifth Principal Meridian, in the state of Minnesota, and was accepted September 7, 2004. We will place a copy of the plat we described in the open files. It will be available to the public as a matter of information. If BLM receives a protest against this survey, as shown on the plat, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file the plat until the day after we have accepted or dismissed all protests and they have become final, including decisions on appeals.
Bureau of Land Management, Interior
Notice of Filing of Plat of Survey; Minnesota.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM-Eastern States, Springfield, Virginia, 30 calender days from the date of publication in the
Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153. Attn: Cadastral Survey.
This survey was requested by the Bureau of Indian Affairs.
The lands we surveyed are:
The plat of survey represents the dependent resurvey of a portion of the north boundary, and a portion of the subdivisional lines; and the survey of the subdivision of section 6, Township 142 North, Range 38 West, of the 5th Principal Meridian, in the state of Minnesota, and was accepted September 9, 2004. We will place a copy of the plat we described in the open files. It will be available to the public as a matter of information.
If BLM receives a protest against this survey, as shown on the plat, prior to the date of the official filing, we will stay the filing pending our consideration of the protest.
We will not officially file the plat until the day after we have accepted or dismissed all protests and they have become final, including decisions on appeals.
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0106).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under 30 CFR part 253, “Oil Spill Financial Responsibility for Offshore Facilities.” This notice also provides the public a second opportunity to comment on the paperwork burden on these regulatory requirements.
Submit written comments by October 20, 2004.
You may submit comments either by fax (202) 395-6566 or email (
Cheryl Blundon, Rules Processing Team, (703) 787-1600. You may also contact Cheryl Blundon to obtain a copy, at no cost, of the regulations and the forms that require the subject collection of information.
The MMS uses the information collected under 30 CFR part 253 to verify compliance with section 1016 of OPA. The information is necessary to confirm that applicants can pay for cleanup and damages from oil-spill discharges from covered offshore facilities (COFs). Routinely, the information will be used: (a) To establish eligibility of applicants for an OSFR Certification; and (b) as a reference source for clean-up and damage claims associated with oil-spill discharges from COFs; the names, addresses, and telephone numbers of owners, operators, and guarantors; designated U.S. agents for service of process; and persons to contact. To collect most of the information, MMS developed standard forms. The forms and their purposes are:
Responses are mandatory. No questions of a “sensitive” nature are asked. Respondents are not required to submit confidential or proprietary information. All public requests for information about an applicant's OSFR Certification will be processed according to the Freedom of Information Act (5 U.S.C. 552) procedures.
To comply with the public consultation process, on March 8, 2004, we published a
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
Minerals Management Service (MMS), Interior.
Notice of revision and extension of an information collection (1010-0114).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under 30 CFR 250, Subpart A, General, and associated forms and Notices to Lessees and Operators (NTLs). This notice also provides the public a second opportunity to comment on the paperwork burden of these regulatory requirements.
Submit written comments by October 20, 2004.
You may submit comments either by fax (202) 395-6566 or e-mail (
Cheryl Blundon, Rules Processing Team, (703) 787-1600. You may also contact Cheryl Blundon to obtain a copy, at no cost, of the regulations and the forms that require the subject collection of information.
Federal policy and statutes require us to recover the cost of services that confer special benefits to identifiable non-Federal recipients. Section 250.165 requires a State lessee to pay a fee when applying for a right-of-use and easement on the OCS. The Independent Offices Appropriation Act (31 U.S.C. 9701), OMB Circular A-25, and the Omnibus Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996) authorize agencies to collect these fees to reimburse us for the cost to process applications or assessments. This fee is the same as that required for filing pipeline right-of-way applications as specified in § 250.1010(a).
This notice concerns the reporting and recordkeeping elements of the 30 CFR 250, Subpart A, General regulations and related forms and NTLs that clarify and provide additional guidance on some aspects of the regulations. Responses are mandatory. No questions of a “sensitive” nature are asked. MMS will protect proprietary information according to 30 CFR 250.196 (Data and information to be made available to the public), 30 CFR part 252 (OCS Oil and Gas Information Program), and the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR 2). MMS OCS Regions use the information collected under Subpart A to ensure that operations on the OCS are carried out in a safe and pollution-free manner, do not interfere with the rights of other users on the OCS, and balance the development of OCS resources with the protection of the environment.
To comply with the public consultation process, on May 21, 2004, we published a
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
Bureau of Reclamation, Interior.
Notice of public meeting.
The Colorado River Basin Salinity Control Advisory Council (Council) was established by the Colorado River Basin Salinity Control Act of 1974 (Pub. L. 93-320) (Act) to receive reports and advise Federal agencies on implementing the Act. In
Wednesday, October 20, 2004—Yuma, Arizona—The meeting will be held in the Clarion Suites located at 2600 South 4th Avenue. The meeting will begin at 9 a.m., recess at approximately 3 p.m., and reconvene briefly the following day at about 12 noon.
The meeting of the Council is open to the public. Any member of the public may file written statements with the Council before, during, or up to 30 days after the meeting, in person or by mail. To the extent that time permits, the Council chairman may allow public presentation of oral comments at the meeting. To allow full consideration of information by Council members, written notice must be provided to Kib Jacobson, Bureau of Reclamation, Upper Colorado Regional Office, 125 South State Street, Room 6107, Salt Lake City, Utah 84138-1147; telephone (801) 524-3753; faxogram (801) 524-5499; e-mail at:
The purpose of the meeting will be to discuss the accomplishments of Federal agencies and make recommendations on future activities to control salinity. Council members will be briefed on the status of salinity control activities and receive input for drafting the Council's annual report. The Bureau of Reclamation, Bureau of Land Management, U.S. Fish and Wildlife Service, and United States Geological Survey of the Department of the Interior; the Natural Resources Conservation Service of the Department of Agriculture; and the Environmental Protection Agency will each present a progress report and a schedule of activities on salinity control in the Colorado River Basin. The Council will discuss salinity control activities and the contents of the reports.
It is the Bureau of Reclamation's practice to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that their home address be withheld from public disclosure, which will be honored to the full extent allowable by law. To have your name and/or address withheld, please state this prominently at the beginning of your comment. Submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
Kib Jacobson, telephone (801) 524-3753; faxogram (801) 524-5499; e-mail at:
United States International Trade Commission.
The United States International Trade Commission (USITC) has submitted a request for emergency processing to the Office of Management and Budget for review and clearance of a questionnaire, in accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The USITC has requested OMB approval of this submission by COB September 28, 2004.
The form is for use by the Commission in connection with investigation No. 332-460, Foundry Products: Competitive Conditions in the U.S. Market, instituted under the authority of section 332(g) of the Tariff Act of 1930 (19 U.S.C. 1332(g)). This investigation was requested by the House Committee on Ways and Means. The Commission expects to deliver the results of its investigation to the Committee by May 4, 2005.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8) Information obtained from the form that qualifies as confidential business information will be so treated by the Commission and not disclosed in a manner that would reveal the individual operations of a firm.
Copies of the forms and supporting documents may be obtained from Deborah McNay (Deputy Project Leader) (USITC, telephone no. (202) 205-3425), or Heather Sykes (USITC, telephone no. (202) 205-3436). Comments about the proposal should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Room 10102 (Docket Library), Washington, DC 20503, ATTENTION: Docket Librarian. All comments should be specific, indicating which part of the questionnaire is objectionable, describing the concern in detail, and including specific suggested revisions or language changes. Copies of any comments should be provided to Robert Rogowsky, Director, Office of Operations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436.
Hearing impaired individuals are advised that information on this matter can be obtained by contacting our TTD terminal (telephone no. (202) 205-1810). General information concerning the Commission may also be obtained by accessing its Internet server (
By order of the Commission.
United States International Trade Commission.
September 21, 2004.
2 p.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
In accordance with 19 CFR 201.35(d)(1), the Commission has determined to cancel the meeting which was scheduled for September 21, 2004 at 2 p.m. The meeting will be rescheduled at a later date. Earlier notification of this action was not possible.
By order of the Commission.
60-day emergency notice of information collection under review: Surveys for the Evaluation of the Child Development-Community Policing (CD-CP) Project.
The Department of Justice, Office of Justice Programs, has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with emergency review procedures of the Paperwork Reduction Act of 1995. Emergency OMB approval has been requested by September 28, 2004. The proposed information collection is published to obtain comments from the public and affected agencies. If granted, the emergency approval is only valid for 180 days. Comments should be directed to OMB, Office of Information and Regulation Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20503. Comments are encouraged and will be accepted for 60 days until November 19, 2004.
During the first 60 days of this same review period, a regular review of this information collection is also being undertaken. All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Katherine Darke, (202) 616-7373, Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice, 810 Seventh Street NW., Washington, DC 20531.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Brenda E. Dyer, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, DC 20530.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Department of Labor (DOL). To obtain documentation, contact Darrin King on 202-693-4129 (this is not a toll-free number) or email:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Bureau of Labor Statistics (BLS), Office of Management and Budget, Room 10235, Washington, DC 20503, 202-395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each ICR, with applicable supporting documentation, may be obtained by contacting the Department of Labor (DOL). To obtain documentation, contact Ira Mills on 202-693-4122 (this is not a toll-free number) or E-Mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL, Office of Management and Budget, Room 10235, Washington, DC 20503, 202-395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
National Science Foundation.
Notice of Permit Applications Received Under the Antarctic Conservation Act.
The National Science Foundation (NSF) is required to publish notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Notice is hereby given that the National Science Foundation (NSF) has received a waste management permit application for operation of remote field camps during a skiing/climbing expedition in the Antarctic interior. The
Interested parties are invited to submit written data, comments, or views with respect to this permit application by October 20, 2004. Permit applications may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Nadene Kennedy at the above address or (703) 292-8030.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed Antarctic Waste Regulations, 45 CFR Part 671, that requires all U.S. citizens and entities to obtain a permit for the use of release of a designated pollutant in Antarctica, and for the release of waste in Antarctica.
The waste permit applications received are as follows:
On April 19, 2004, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Under Section 107A of the Company Guide, the Exchange may approve for listing and trading securities which cannot be readily categorized under the listing criteria for common and preferred stocks, bonds, debentures, or warrants.
Below is the text of the proposed rule change. Proposed new language is italicized.
The Exchange will consider listing any security not otherwise covered by the criteria of Sections 101 through 106, provided the issue is otherwise suited for auction market trading. Such issues
A-C. No Change
(a)
i.
The Exchange's proposal to add new Section 107E to the Amex Company Guide is to provide generic listing standards to permit the listing and trading of qualified Trust Securities pursuant to Rule 19b-4(e) under the Act.
Rule 19b-4(e) provides that the listing and trading of a new derivative securities product by a self-regulatory organization shall not be deemed a proposed rule change, pursuant to paragraph (c)(1) of Rule 19b-4, if the Commission has approved, pursuant to Section 19(b) of the Act, the self-regulatory organization's trading rules, procedures and listing standards for the product class that would include the new derivative securities product, and the self-regulatory organization has a surveillance program for the product class.
In its filing the Exchange represented that adopting generic listing standards for Trust Securities should fulfill the objective of Rule 19b-4(e) by allowing those Trust Securities that satisfy the proposed generic listing standards to start trading, without the need for public notice and comment and Commission approval, thus potentially reducing the time frame for bringing Trust Securities to market and thereby reducing the burdens on issuers, other market participants and the Commission staff.
Trust Securities represent an ownership interest in a special purpose trust created pursuant to a Trust.
Due to the pass-through and passive nature of the Trust Securities, the Exchange will rely on the assets and stockholder equity of the issuers of the Underlying Bonds and GSE Securities to meet the requirement in Section 107A(a) of the Company Guide. For purposes of including Treasury Securities, the Exchange will rely on the fact that the issuer is the U.S. Government rather than the asset and stockholder tests found in Section 107A(a). The distribution and aggregate principal amount/aggregate market value standards found in Sections 107A(b) and (c), respectively, will otherwise be met by the Trust as issuer of the Trust Securities.
Therefore, the listing guidelines provide that the issuer of the Underlying Bonds and GSE Securities have assets in excess of $100 million, stockholders' equity of at least $10 million, and pre-tax income of at least $750,000 in the last fiscal year or in two of the three prior fiscal years. In the case of an issuer of the Underlying Bonds and GSE Securities which is unable to satisfy the earning criteria stated in Section 101 of the Company Guide, the Exchange will require the issuer to have the following: (1) Assets in excess of $200 million and stockholders' equity of at least $10 million; or (2) assets in excess of $100 million and stockholders' equity of at least $20 million.
These initial listing standards for the Trust Securities require: (1) A minimum public distribution of one million units; (2) a minimum of 400 shareholders; (3) a market value of at least $4 million; and (4) a term of at least one year. However, if traded in thousand dollar denominations, then the minimum public distribution requirement of 400 holders does not apply.
The basket of Underlying Securities will not be managed and will generally remain static over the term of the Trust Securities. Each of the Underlying Securities will generally provide for the payment of interest which may be on a different schedule than the distributions of interest by the Trust Securities. To alleviate potential cash flow timing issues that may exist, the Trust may enter into an interest distribution agreement.
Holders of Trust Securities generally will receive interest on the face value in an amount to be determined at the time of issuance of the Trust Securities and disclosed to investors. The rate of interest payments will be based upon prevailing interest rates at the time of issuance and made to the extent received from the Underlying Securities. Distributions of interest may be made monthly, quarterly or semi-annually. Investors will also be entitled to be repaid the principal of their Trust Securities from the proceeds of the principal payments on the Underlying Securities.
The Trust Securities will mature on the latest maturity date of the Underlying Securities. Holders of the Trust Securities will have no direct ability to exercise any of the rights of a holder of an Underlying Bond; however, holders of the Trust Securities as a group will have the right to direct the Trust in its exercise of its rights as holder of the Underlying Securities. The Exchange currently lists and trades several Trust Securities under the names of “Select Notes” and “TRACERS.”
In addition, the Underlying Securities must meet the Exchange's Bond and Debenture Listing Standards set forth in Section 104 of the Company Guide. The Exchange's Bond and Debenture Listing Standards in Section 104 of the Company Guide provide for the listing of individual bond or debenture issuances provided the issue has an aggregate market value or principal amount of at least $5 million and any of: (1) The issuer of the debt security has equity securities listed on the Exchange (or on the New York Stock Exchange, Inc. (“NYSE”) or on the Nasdaq National Market); (2) an issuer of equity securities listed on the Exchange (or on the NYSE or on the Nasdaq National Market) directly or indirectly owns a majority interest in, or is under common control with, the issuer of the debt security; (3) an issuer of equity securities listed on the Exchange (or on the NYSE or on the Nasdaq National Market) has guaranteed the debt security; (4) an NRSRO has assigned a current rating to the debt security that is no lower than an Standard & Poor's Corporation (“S&P”) “B” rating or equivalent rating by another NRSRO; or (5) or if no NRSRO has assigned a rating to the issue, an NRSRO has currently assigned (i) an investment grade rating to an immediately senior issue or (ii) a rating that is no lower than a S&P “B” rating or an equivalent rating by another NRSRO to a pari passu or junior issue.
In addition to the Exchange's Bond and Debenture Listing Standards, the Amex proposes that each Underlying Security must also be of investment grade quality as rated by a NRSRO and at least 75% of the underlying basket or portfolio contain Underlying Securities from issuances of $100 million or more. The maturity of each Underlying Security is expected to match the payment of principal of the Trust Securities with the maturity date of the Trust Securities being the latest maturity date of the Underlying Securities. Amortization of the Trust
Price and transaction information for Treasury Securities and GSE Securities may also be obtained at
The Trust Securities will conform to the Exchange's continued listing guidelines, which are set forth in Sections 1001 through 1003 of Part 10 to the Exchange's Company Guide. Section 1002(b) of the Company Guide states that the Exchange will consider removing from listing any security where, in the opinion of the Exchange, it appears that the extent of public distribution or aggregate market value has become so reduced to make further dealings on the Exchange inadvisable. With respect to continued listing guidelines for distribution of the Trust Securities, the Exchange will rely on the guidelines for bonds in Section 1003(b)(iv). Section 1003(b)(iv)(A) provides that the Exchange will normally consider suspending dealings in, or removing from the list, a security if the aggregate market value or the principal amount of bonds publicly held is less than $400,000 or the issuer is not able to meet its obligations on the listed debt securities, including repayment of the original principal investment.
The Trust Securities generally will be listed in $1,000 denominations (or multiples thereof) with the Exchange's existing debt floor trading rules applying to trading. However, Trust Securities may be listed in face amounts in other than $1,000 denominations (or multiples thereof) whereby the Exchange's existing equity floor trading rules would apply. The Trust Securities will also be subject to the debt margin rules of the Exchange.
The Exchange represents that its surveillance procedures are adequate to properly monitor the trading of the Trust Securities. In addition, the Exchange also has a general policy that prohibits the distribution of material, non-public information by its employees. Prior to commencement of the trading, the generic listing standards also require the Exchange to evaluate the nature and complexity of the issue and, if appropriate, distribute a circular to the membership providing guidance regarding member firm compliance responsibilities (including suitability recommendations) when handling transactions in such securities and highlighting the special risks and characteristics of the Trust Securities.
After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b)(5) of the Act.
As described more fully above, the Trust Securities are asset-backed securities and represent a repackaging of the Underlying Corporate Bonds together with the addition of Treasury Securities and/or GSE Securities, subject to certain distribution of interest obligations of the Trust. The Treasury Securities and/or GSE Securities are limited to up to 15% of the underlying portfolio at the time of issuance. The Trust Securities are not leveraged instruments. The Trust Securities are debt instruments whose price will still be derived and based upon the value of the Underlying Securities. Investors are guaranteed at least the principal amount that they paid for the Underlying Securities. Each of the Underlying Securities will generally provide for the payment of interest which may be on a different schedule than the distributions of interest by the Trust Securities. To alleviate potential cash flow timing issues that may exist, the Trust may enter into an interest distribution agreement described in Part II of this Order. In addition, the Trust Securities will mature on the latest maturity date of the Underlying Securities. However, due to the pass-through nature of the Trust Securities, the level of risk involved in the purchase or sale of the Trust Securities is similar to the risk
The Commission notes that the Trust Securities are dependent upon the individual credit of the issuers of the Underlying Securities. To some extent this credit risk is minimized by the Exchange's listing standards in Section 107A of the Company Guide which provide that only issuers satisfying asset and equity requirements may issue securities such as the Trust Securities. In addition, the Exchange's listing standards further provide that there is no minimum holder requirement if the securities are traded in thousand dollar denominations.
Due to the pass-through and passive nature of the Trust Securities, the Commission does not object to the Exchange's reliance on the assets and stockholder equity of the Underlying Securities rather than the Trust to meet the requirement in Section 107A of the Company Guide. The Commission notes that the distribution and principal amount/aggregate market value requirements found in Sections 107A(b) and (c), respectively, will otherwise be met by the Trust as issuer of the Trust Securities. Thus, the generic listing standards in Section 107E for Trust Securities will conform to the initial listing guidelines under Section 107A and continued listing guidelines under Sections 1001-1003 of the Company Guide, except for the assets and stockholder equity characteristics of the Trust. At the time of issuance, the Commission also notes that the Underlying Securities of the Trust Securities will receive an investment grade rating from an NRSRO.
The Commission also believes that the listing and trading of the Trust Securities should not unduly impact the market for the Underlying Securities or raise manipulative concerns. As discussed more fully above, the Exchange represents that, in addition to requiring that issuers of the Underlying Securities meet the Exchange's Section 107A listing requirements (in the case of Treasury securities, the Exchange will rely on the fact that the issuer is the United States Government rather than the asset and stockholder tests found in Section 107A), the Underlying Securities will be required to meet or exceed the Exchange's Bond and Debenture Listing Standards pursuant to Section 104 of the Amex's Company Guide, which among other things, requires that underlying debt instrument receive at least an investment grade rating of “B” or equivalent from an NRSRO. Furthermore, at least 75% of the basket is required to contain Underlying Securities from issuances of $100 million or more. The Amex also represents that the basket of Underlying Securities will not be managed and will remain static over the term of the ABS securities. In addition, the Amex's surveillance procedures will serve to deter as well as detect any potential manipulation.
The Commission notes that the investors may obtain price information on the Underlying Securities through market venders such as Bloomberg, or though Web sites such as
Finally, the Commission believes that, by adopting generic listing standards for Trust Securities, this proposal should fulfill the intended objective of Rule 19b-4(e) by allowing Trust Securities that satisfy the proposed generic listing standards to start trading, without the need for public notice and comment and Commission approval, because the Exchange's generic listing standards address the listing, trading, surveillance issues for this product class. The Commission believes that these generic listing standards have the potential to reduce the time frame for bringing Trust Securities to market, thus reducing the burdens of issuers, other market participants, and the Commission.
The Commission finds good cause for approving Amendment Nos. 2 and 3 prior to the thirtieth day after the date of publication of notice thereof in the
Interested persons are invited to submit written data, views, and arguments concerning Amendment Nos. 2 and 3, including whether the proposed amendments are consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-Amex-2004-23. This file number should be included on the
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 NYSE hereby proposes to amend Exchange Rule 440H to include an interpretation that would rescind advice the Exchange had previously provided to members and member organizations regarding the calculation of transaction fees.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On June 28, 2004, the Commission adopted new Rule 31 under the Act,
Exchange Rule 440H requires each Exchange member or member organization engaged in clearing or settling transactions effected upon the Exchange to pay to the Exchange as a “Transaction Fee” a sum equal to the dollar amount as prescribed in Section 31 of the Act based on the total aggregate dollar sales volume the member or member organization has reported monthly on its Form 120-A. Historically, the funds collected by the Exchange from members and member organizations pursuant to Rule 440H were remitted in their entirety to the Commission. NYSE Information Memo No. 01-51 instructs each member or member organization to use a specific “rounding up” formula to calculate the fee relative to each transaction.
In the Rule 31 Adopting Release, the Commission established new procedures governing the calculation, payment, and collection of fees and assessments on securities transactions owed by national securities exchanges and national securities associations (collectively, “self-regulatory organizations” or “SROs”) to the Commission pursuant to Section 31 of the Act.
In the Rule 31 Adopting Release, the Commission noted that, in practice, SROs obtain the funds to pay Section 31 fees and assessments by assessing charges on their members, and the members in turn pass these charges to their customers.
The Exchange believes that the new Section 31 procedures have rendered the instructions in the “Calculation of Fees—Rounding Up” section of NYSE Information Memo No. 01-51 inapplicable. NYSE Rule 440H does not dictate whether or how members or member organizations should charge customers to recover amounts paid to the Exchange. Therefore, members and member organizations should be relieved of any obligation to follow the rounding up and other calculation procedures described in the “Calculation of Fees—Rounding Up” section of NYSE Information Memo No. 01-51. Proposed Interpretation /01 to NYSE Rule 440H achieves this purpose.
The Exchange believes that the statutory basis for this proposed rule change is Section 6(b)(4) of the Act
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The Exchange asserts that the foregoing proposed rule change has become effective upon filing pursuant to Section 19(b)(3)(A) of the Act
(i) Significantly affect the protection of investors or the public interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest; provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the filing date of the proposed rule change.
The NYSE has requested that the Commission waive the five business-day pre-filing notice requirement and the 30-day pre-operative period, which would make the rule change operative immediately. The Commission believes that it is consistent with the protection of investors and the public interest to waive the 30-day pre-operative period in this case.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-NYSE-2004-45. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On April 14, 2004, the Pacific Exchange, Inc. (“PCX” or “Exchange”), through its wholly owned subsidiary, PCX Equities, Inc. (“PCXE”), filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On July 2, 2004, the PCX amended the proposed rule change.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In approving this proposal, the Commission in no way minimizes the importance of compliance with these rules, and all other rules subject to the imposition of fines under the MRP. The Commission believes that the violation of any self-regulatory organization's rules, as well as Commission rules, is a serious matter. However, in an effort to provide the Exchange with greater flexibility in addressing certain violations, the MRP provides a reasonable means to address rule violations that do not rise to the level of requiring formal disciplinary proceedings. The Commission expects that the Exchange will continue to conduct surveillance with due diligence, and make a determination based on its findings whether fines of more or less than the recommended amount are appropriate for violations of rules under the MRP on a case by case basis, or if a violation requires formal disciplinary action.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Selective Service System.
Notice.
The following form has been submitted to the Office of Management and Budget (OMB) for extension of clearance in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35):
Copies of the above identified form can be obtained upon written request to the Selective Service System, Reports Clearance Officer, 1515 Wilson Boulevard, Arlington, Virginia 22209-2425.
Written comments and recommendations for the proposed extension of clearance of the form should be sent within 30 days of publication of this notice to the Selective Service System, Reports Clearance Officer, 1515 Wilson Boulevard, Arlington, Virginia 22209-2425.
A copy of the comments should be sent to Office of Information and Regulatory Affairs, Attention: Desk Officer, Selective Service System, Office of Management and Budget, New Executive Office Building, Room 3235, Washington, DC 20503.
Department of State.
Notice.
Pursuant to section 654(c) of the Foreign Assistance Act of 1961, as amended, notice is hereby given that the Under Secretary of State for Arms Control and International Security has made a determination pursuant to section 73 of the Arms Export Control Act and has concluded that publication of the determination would be harmful to the national security of the United States.
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 Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, Department of State, (telephone: 202/619-6981). The address is Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
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 Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, Department of State, (telephone: 202/619-6981). The address is Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Bureau of Nonproliferation, Department of State.
Notice.
The U.S Government has determined that a foreign entity has engaged in missile technology proliferation activities that require the imposition of measures pursuant to Executive Order 12938 of November 14, 1994, as amended by Executive Order 13094 of July 28, 1998.
September 20, 2004.
On general issues: Vann H. Van Diepen, Office of Chemical, Biological and Missile Nonproliferation, Bureau of Nonproliferation, Department of State (202-647-1142). On U.S. Government procurement ban issues: Gladys Gines, Office of the Procurement Executive, Department of State (703-516-1691).
Pursuant to the authorities vested in the President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701
Accordingly, pursuant to the provisions of Executive Order 12938,
(1) All departments and agencies of the United States Government shall not procure or enter into any contract for the procurement of any goods, technology, or services from these entities including the termination of existing contracts;
(2) All departments and agencies of the United States government shall not provide any assistance to these entities, and shall not obligate further funds for such purposes;
(3) The Secretary of the Treasury shall prohibit the importation into the United States of any goods, technology, or services produced or provided by these entities, other than information or informational materials within the meaning of section 203(b)(3) of the International Emergency Economic Powers Act (50 U.S.C. 1702(b)(3)).
These measures shall be implemented by the responsible departments and agencies as provided in Executive Order 12938.
In addition, pursuant to section 126.7(a)(1) of the International Traffic in Arms Regulations, it is deemed that suspending the above-named entity from participating in any activities subject to Section 38 of the Arms Export Control Act would be in furtherance of the national security and foreign policy of the United States. Therefore, until further notice, the Department of State is hereby suspending all licenses and other approvals for: (a) Exports and other transfers of defense articles and defense services from the United States; (b) transfers of U.S.-origin defense articles and defense services from foreign destinations; and (c) temporary import of defense articles to or from the above-named entity.
Moreover, it is the policy of the United States to deny licenses and other approvals for exports and temporary imports of defense articles and defense services destined for this entity.
Department of State.
Notice.
A determination has been made to extend the waiver of import sanctions against certain activities of the Chinese Government that was announced on September 19, 2003, pursuant to the Arms Export Control Act, as amended.
September 18, 2004.
Vann H. Van Diepen, Office of Chemical, Biological and Missile Nonproliferation, Bureau of Nonproliferation, Department of State (202-647-1142).
A determination was made on August 29, 2003, pursuant to section 73(e) of the Arms Export Control Act (22 U.S.C. 2797b(e)) that it was essential to the national security of the United States to waive for a period of one year the import sanction described in section 73(a)(2)(C) of the Arms Export Control Act (22 U.S.C. 2797b(a)(2)(C)) against the activities of the Chinese Government described in section 74(a)(8)(B) of the Arms Export Control Act (22 U.S.C. 2797c(a)(8)(B))—
On September 8, 2004, a determination was made pursuant to section 73(e) of the Arms Export Control Act (22 U.S.C. 2797b(e)) that it is essential to the national security of the United States to extend the waiver period for an additional six months, effective from the date of expiration of the previous waiver (September 18, 2004).
These measures shall be implemented by the responsible agencies as provided in Executive Order 12851 of June 11, 1993.
Tennessee Valley Authority (Meeting No. 1554).
9 a.m. (EDT), September 22, 2004, TVA West Tower Auditorium, 400 West Summit Hill Drive, Knoxville, Tennessee.
Open.
Approval of minutes of meeting held on August 18, 2004.
A1. Approval of Fiscal Year 2005 TVA Budget.
C1. Delegation of authority to the Executive Vice President, Fossil Power Group, to enter into a contract with Webster County Coal LLC for coal supply to Widows Creek Fossil Plant Units 7 and 8.
E1. Grant of a permanent easement to Hallsdale-Powell Utility District for the construction of a raw water intake structure and line, including water transmission and discharge lines, without charge, except for TVA's administrative costs, affecting approximately 1.5 acres of land on Norris Reservoir in Union County, Tennessee, Tract No. XTNR-116W.
E2. Modification of certain deed restrictions affecting approximately 27 acres of former TVA land, Tract No. XCR-642, S.3X, and sale of a permanent easement affecting approximately 0.5 acre of land, Tract No. XCR-705E, on Chickamauga Reservoir in Hamilton County, Tennessee.
F1. Approval to file a condemnation case to acquire an easement and right-of-way affecting 3.17 acres of land in Wilson County, Tennessee, for the North Lebanon Transmission Line.
1. Approval of new Risk Management Structure which includes strengthening and formalizing the role of TVA's Management Committee in managing overall enterprise risk, establishment of a new Portfolio Risk Management Committee, and the appointment of Chris S. Mitchell as Chief Risk Officer.
2. Approval to reclassify certain Bellefonte Nuclear Plant assets from the deferred nuclear generating units category to the completed plant category.
Please call TVA Media Relations at (865) 632-6000, Knoxville, Tennessee. Information is also available at TVA's Washington Office (202) 898-2999. People who plan to attend the meeting and have special needs should call (865) 632-6000. Anyone who wishes to comment on any of the agenda in writing may send their comments to: TVA Board of Directors, Board Agenda Comments, 400 West Summit Hill Drive, Knoxville, Tennessee 37902.
CSX Transportation, Inc. (CSXT) has filed a notice of exemption under 49 CFR 1152 Subpart F—
CSXT has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) all overhead traffic on the line can 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 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
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on October 20, 2004, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to CSXT's representative: Louis E. Gitomer, Ball Janik LLP, 1455 F St., NW., Suite 225, Washington, DC 20005.
If the verified notice contains false or misleading information, the exemption is void
CSXT has filed an environmental report which addresses the abandonment's effects, if any, on the environment and historic resources. SEA will issue an environmental assessment (EA) by September 24, 2004. 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), CSXT 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 CSXT's filing of a notice of consummation by September 20, 2005, 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.
CSX Transportation, Inc. (CSXT) has filed a verified notice of exemption under 49 CFR 1152 subpart F—
CSXT has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) any overhead traffic on the line can 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 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 report), 49 CFR 1105.8
As a condition to this exemption, any employee adversely affected by the discontinuance shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on October 20, 2004,
A copy of any petition filed with the Board should be sent to applicant's representative: Louis E. Gitomer, 1455 F Street, NW., Suite 225, Washington, DC 20005.
If the verified notice contains false or misleading information, the exemption is void
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Community Development Financial Institutions Fund, Department of the Treasury.
Notice of open meeting.
This notice announces the next meeting of the Community Development Advisory Board (the Advisory Board), which provides advice to the Director of the Community Development Financial Institutions Fund (the Fund).
The next meeting of the Advisory Board will be held from 1 p.m. to 4 p.m. on October 18, 2004, and from 8:30 a.m. to 4 p.m. on October 19, 2004.
The Advisory Board meeting will be held at the Capital View Conference Center, located at 101 Constitution Avenue, NW., Ninth Floor, Washington, DC.
The Office of Public and Legislative Affairs of the Fund, 601 13th Street, NW., Suite 200 South, Washington, DC 20005, (202) 622-9046 (this is not a toll free number). Other information regarding the Fund and its programs may be obtained through the Fund's Web site at
Section 104(d) of the Community Development Banking and Financial Institutions Act of 1994 (12 U.S.C. 4703(d)) established the Advisory Board. The charter for the Advisory Board has been filed in accordance with the Federal Advisory Committee Act, as amended (5 U.S.C. App.), and with the approval of the Secretary of the Treasury.
The function of the Advisory Board is to advise the Director of the Fund (who has been delegated the authority to administer the Fund) on the policies regarding the activities of the Fund. The Fund is a wholly owned corporation within the Department of the Treasury. The Advisory Board shall not advise the Fund on the granting or denial of any particular application for monetary or non-monetary awards. The Advisory Board shall meet at least annually.
It has been determined that this document is not a major rule as defined in Executive Order 12291 and therefore regulatory impact analysis is not required. In addition, this document does not constitute a rule subject to the Regulatory Flexibility Act (5 U.S.C. Chapter 6).
The next meeting of the Advisory Board, all of which will be open to the public, will be held at the Capital View Conference Center, located at 101 Constitution Avenue, NW., Ninth Floor, Washington, DC, from 1 p.m. to 4 p.m. on October 18, 2004, and from 8:30 a.m. to 4 p.m. on October 19, 2004. The room will accommodate 20 members of the public. Seats are available to members of the public on a first-come, first-served basis. Participation in the discussions at the meeting will be limited to Advisory Board members, Department of the Treasury staff, and certain invited guests. Anyone who would like to have the Advisory Board consider a written statement must submit it to the Fund at the address of the Fund specified above in the
On October 18, 2004, the meeting will include a report from the Director on the activities of the Fund since the last Advisory Board meeting, as well as policy, programmatic, fiscal and legislative initiatives for the years 2005 and 2006. On October 19, 2004, the meeting will include a discussion of the Fund's policy and strategic directions for the future.
12 U.S.C. 4703; Chapter X, Pub. L. 104-19, 109 Stat. 237.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 10574, Community Based Outlet Program.
Written comments should be received on or before November 19, 2004 to be assured of consideration.
Direct all written comments to Paul H. Finger, Internal Revenue Service, Room 6512, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carol Savage at Internal Revenue Service, Room 6516, 1111 Constitution Avenue NW.,
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS) Treasury.
Notice.
An open meeting of the Joint Committee of the Taxpayer Advocacy Panel will be conducted via teleconference. The Taxpayer Advocacy Panel is soliciting public comment, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, October 19, 2004, at 1:30 p.m., Eastern Daylight Time.
Barbara Toy at 1-888-912-1227, or 414-297-1611.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Joint Committee of the Taxpayer Advocacy Panel (TAP) will be held Tuesday, October 19, 2004, from 1:30 to 3 p.m. Eastern daylight time via a telephone conference call. If you would like to have the Joint Committee of TAP consider a written statement, please call 1-888-912-1227 or 414-297-1611, or write Barbara Toy, TAP Office, MS-1006-MIL, 310 West Wisconsin Avenue, Milwaukee, WI 53203-2221, or FAX to 414-297-1623, or you can contact us at
Ms. Toy can be reached at 1-888-912-1227 or 414-297-1611, or FAX 414-297-1623.
The agenda will include the following: monthly committee summary report, discussion of issues brought to the joint committee, office report, and discussion of next meeting.
Veterans' Employment and Training Service, Department of Labor.
Proposed rules.
The Veterans' Employment and Training Service (“VETS” or “the Agency”) is issuing proposed rules that would implement the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA). Congress enacted USERRA to protect the rights of persons who voluntarily or involuntarily leave employment positions to undertake military service. USERRA authorizes the Secretary of Labor (in consultation with the Secretary of Defense) to prescribe rules implementing the law as it applies to States, local governments, and private employers. VETS is proposing these rules under that authority in order to provide guidance to employers and employees concerning their rights and obligations under USERRA. The Agency invites written comments on these proposed rules, and any specific issues related to this proposal, from members of the public.
Comments regarding this proposal, including comments on the information-collection determination described in Section V of the preamble (“Paperwork Reduction Act”), must be received by the Agency on or before November 19, 2004. Please see the sections below entitled
You may submit comments, identified as “Docket No. VETS-U-04,” by any of the following methods:
Note that security-related problems may result in significant delays in receiving comments and other written materials by regular mail. Contact Mr. Charles Dawson, VETS Office of Operations and Programs, at (202) 693-4711 for information regarding security procedures concerning delivery of materials by express delivery, hand delivery, and messenger service.
For information, contact Charles Dawson, Office of Operations and Programs, Veterans' Employment and Training Service (VETS), U.S. Department of Labor, Room S1316, 200 Constitution Ave., NW., Washington, DC 20210. Telephone: 202-693-4711 (this is not a toll-free number). Electronic mail:
For press inquiries, contact Michael Biddle, Office of Public Affairs, U.S. Department of Labor, Room S-1032, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-5051 (this is not a toll-free number). Electronic mail:
The Department of Labor proposes to issue regulations to implement the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA), 38 U.S.C. 4301-4333. Congress enacted USERRA to protect the rights of persons who voluntarily or involuntarily leave employment positions to undertake military service. Section 4331 of USERRA authorizes the Secretary of Labor (in consultation with the Secretary of Defense) to prescribe regulations implementing the law as it applies to States, local governments, and private employers. 38 U.S.C. 4331(a). The Department has consulted with the Department of Defense, and proposes these regulations under that authority in order to provide guidance to employers and employees concerning the rights and obligations of both under USERRA. The Department invites written comments on these proposed regulations from interested parties. The Department also invites public comment on specific issues.
USERRA was enacted in part to clarify prior laws relating to the reemployment rights of service members, rights that were first contained in the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C. 301,
In construing USERRA and these prior laws, courts have followed the Supreme Court's admonition that:
This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need * * * And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act.
This preamble also selectively refers to many other cases decided under USERRA and its predecessor statutes, to explain and illustrate the rights and benefits established under the Act. The failure to cite or refer to a particular
The Department wrote this proposed rule in the more personal style advocated by the Presidential Memorandum on Plain Language. “Plain language” encourages the use of:
• Personal pronouns (we and you);
• Sentences in the active voice; and,
• A greater use of headings, lists, and questions.
In this proposed rule, “you,” “I,” and “my,” refers to employees because they are the primary beneficiaries of USERRA rights and benefits. The Department recognizes and appreciates the value of comments, ideas, and suggestions from members of the uniformed services, employers, industry associations, labor organizations and other parties who have an interest in uniformed service members' and veterans' employment and reemployment benefits. The Department would appreciate comments and suggestions from all parties on this proposed rule and on language that would improve the clarity of this regulation.
You may submit comments and data by sending electronic mail (E-mail) to:
Proposed sections 1002.1 through 1002.7 describe the regulation's purpose, scope, and background, as well as the sense of the Congress in enacting USERRA. Proposed Section 1002.1 sets out the purpose of these regulations.
USERRA prohibits an employer from engaging in acts of discrimination against past and present members of the uniformed services, as well as applicants to the uniformed services. 38 U.S.C. 4311(a). The anti-discrimination prohibition applies to both employers and potential employers. No employer may deny a person initial employment, reemployment, retention in employment, promotion, or any benefit of employment based on the person's membership, application for membership, performance of service, application to perform service, or obligation for service in the uniformed services. USERRA also protects any person who participates in an action to protect past, present or future members of the uniformed services in the exercise of their rights under the Act. The Act prohibits any employer from discriminating or taking reprisals against any person who acts to enforce rights under the Act; testifies in or assists a statutory investigation; or, exercises any right under the statute pertaining to any person. 38 U.S.C. 4311(b). A person is protected against discrimination and reprisal regardless whether he or she has served in the military.
Proposed sections 1002.18, 1002.19 and 1002.20 implement the protections of section 4311(a) and (b). Proposed section 1002.21 makes clear that the prohibition on discrimination applies to any employment position, regardless of its duration, including a position of employment that is for a brief, non-recurrent period, and for which there is no reasonable expectation that the employment position will continue indefinitely or for a significant period. Proposed section 1002.22 explains who has the burden of proving that certain action violates the statute. The Department requests comment on the application of the anti-discrimination provisions of the Act to potential employers.
In order to establish a case of employer discrimination, the person's membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services must be a “motivating factor” in the employer's actions or conduct. 38 U.S.C. 4311(c)(1). Section 4311(c) sets out an evidentiary scheme like that followed by the National Labor Relations Board in interpreting the National Labor Relations Act, as explained by the United States Supreme Court in
A person alleging discrimination under USERRA must first establish that his or her protected status as a past, present or future service member was a motivating factor in the adverse employment action.
After the employee establishes the elements of a violation, the employer may avoid liability by proving that the claimant's military status was not a motivating factor in the adverse employment action.
Section 4311(c)(2) provides the same evidentiary framework for adjudicating allegations of reprisal against any person (including individuals unaffiliated with the military) for engaging in activities to enforce a protected right; providing testimony or statements in a USERRA proceeding; assisting or participating in a USERRA investigation; or exercising a right provided by the statute. 38 U.S.C. 4311(c)(2). Proposed section 1002.19 addresses the elements of a case of retaliation.
USERRA requires that the service member meet five general criteria in order to establish eligibility for reemployment:
(1) That the service member be absent from a position of civilian employment by reason of service in the uniformed services;
(2) That the service member's employer be given advance notice of the service;
(3) That the service member have five years or less of cumulative service in the uniformed services with respect to a position of employment with a particular employer;
(4) That the service member return to work or apply for reemployment in a timely manner after conclusion of service; and,
(5) That the service member not have been separated from service with a disqualifying discharge or under other than honorable conditions.
A person who meets these eligibility criteria, which are contained in 38 U.S.C. 4312(a)-(c) and 4304, is entitled to be reemployed in the position described in 38 U.S.C. 4313, unless the employer can establish one of the three affirmative defenses contained in 38 U.S.C. 4312(d).
There has been some disagreement in the courts over the appropriate burden of proof in cases brought under 38 U.S.C. 4312, the provision in USERRA establishing the reemployment rights of persons who serve in the uniformed services. One court has interpreted that provision to be “a subsection of § 4311 [the anti-discrimination and anti-retaliation provision].”
The Department agrees with the district court decisions in
Proposed sections 1002.34 through 1002.44 list the employers and employment positions that are covered by USERRA. Proposed section 1002.33 provides that the Act's coverage extends to virtually all employers in the United States; the statute contains no threshold or minimum size to limit its reach. The remaining proposed provisions address various aspects of the employment relationship subject to the Act. Proposed section 1002.35 defines the term “successor in interest.” Proposed section 1002.37 addresses the situation in which more than one employer may be responsible for one employee. Proposed sections 1002.38 and 1002.42 discuss hiring halls, layoffs and recalls. Proposed section 1002.39 covers States and other political subdivisions of the United States as employers.
Proposed section 1002.40 makes clear that USERRA makes it unlawful for any employer to deny employment to a prospective employee on the basis of his or her membership, application for membership, performance of service, application to perform service, or obligation for service in the uniformed services, or on the basis of his or her exercise of any right guaranteed under the Act. Temporary, part-time, probationary, and seasonal employment positions are also covered by USERRA. Proposed section 1002.41 addresses the limited exception for positions that are for a brief, non-recurrent period and for which the employee has no reasonable expectation of continued employment indefinitely or for a significant period. Proposed section 1002.42 explains that USERRA covers employees on strike, layoff, or leave of absence. Proposed section 1002.43 makes clear that persons occupying professional, executive and managerial positions also are entitled to USERRA rights and benefits. Proposed section 1002.44 addresses the distinction between an independent contractor and an employee under USERRA.
Proposed sections 1002.54 through 1002.62 explain the term “service in the
Proposed section 1002.73 addresses the issue of the employee's reason for leaving employment as it bears on his or her reemployment rights. Section 4312(a) of the Act states that “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services” is entitled to the reemployment rights and benefits of USERRA, assuming the Act's eligibility requirements are met. Military service need not be the only reason the employee leaves, provided such service is at least one of the reasons.
USERRA does not impose a limit on the amount of time that may elapse between the date the employee leaves his or her position and the date he or she actually enters the service. Proposed section 1002.74 recognizes that no such limit is warranted. A person entering military service generally needs a period of time to organize his or her personal affairs, travel safely to the site where the service is to be performed, and arrive fit to perform service. The amount of time needed for these preparations will vary from case to case. Moreover, the actual commencement of the period of service may be delayed for reasons beyond the employee's control. If an unusual delay occurs between the time the person leaves civilian employment and the commencement of the uniformed service, the circumstances causing the delay may be relevant to establish that the person's absence from civilian employment was “necessitated by reason of service in the uniformed services.”
Proposed section 1002.85 explains one of the basic obligations imposed on the service member by USERRA as a prerequisite to reemployment rights: the requirement to notify the employer in advance about impending military service. 38 U.S.C. 4312(a)(1). Section 4312(a)(1) of USERRA contains three general components of adequate notice: (i) The sender of the notice; (ii) the type of notice; and (iii) the timing of notice. First, the employee must notify his or her employer that the employee will be absent from the employment position due to service in the uniformed services. An “appropriate officer” from the employee's service branch, rather than the employee, may also provide the notice to the employer. Second, the notice may be either verbal or in writing.
Proposed section 1002.86 implements the statutory exceptions to the requirement of advance notice of entry into the uniformed services. The statute recognizes that in rare cases it may be very difficult or impossible for an employee to give advance notice to his or her employer. To accommodate these cases, the advance notice requirement may be excused by reason of “military necessity” or circumstances that make notice to the employer “otherwise impossible or unreasonable.” 38 U.S.C. 4312(b). Section 4312(b) also provides that the uniformed services make the determination whether military necessity excuses an individual from notifying his or her employer about forthcoming military service. Any such determination is to be made according to regulations issued by the Secretary of Defense.
Proposed section 1002.87 makes explicit that the employee is not required to obtain the employer's permission before departing for uniformed service in order to protect his or her reemployment rights. Imposing a prior consent requirement would improperly grant the employer veto authority over the employee's ability to perform service in the uniformed services by forcing the employee to choose between service and potential loss of his or her employment position, if consent were withheld.
Proposed section 1002.88 implements the long-standing legal principle that an employee departing for service is not required to decide at that time whether he or she intends to return to the pre-service employer upon completion of the tour of duty. Rather, the employee may defer the decision until after he or she concludes the period of service, and the employer may not press the employee for any assurances about his or her plans.
USERRA provides that an individual may serve up to five years in the uniformed services, in a single period of service or in cumulative periods totaling
Proposed section 1002.102 addresses periods of service undertaken prior to the enactment of USERRA, when the Veterans' Reemployment Rights Act (VRRA) was in effect. If an individual's service time counted towards the VRRA's four or five-year periods for reemployment rights, then that service also counts towards USERRA's five-year period. The regulation implements section (a)(3) of the rules governing the transition from the VRRA to USERRA, which appear in a note following 38 U.S.C. 4301. The Department invites comments as to whether this interpretation best effectuates the purpose of the Act.
Section 4312(c) enumerates eight specific exceptions to the five-year limit on uniformed service that allow an individual to serve longer than five years while working for a single employer and retain reemployment rights under USERRA. 38 U.S.C. 4312(c)(1)-(4)(A)-(E). The exceptions involve unusual service requirements, circumstances beyond the individual's control, or service (voluntary or involuntary) under orders issued pursuant to specific statutory authority or the authority of the President, Congress or a Service Secretary. Proposed section 1002.103 implements this provision by describing each exception set out in the statute.
The regulation also recognizes a ninth exception based on equitable considerations. A service member is expected to mitigate economic damages suffered as a consequence of an employer's violation of the Act.
Proposed section 1002.104 implements section 4312(h), which prohibits the denial of reemployment rights based on the “timing, frequency, and duration” of the individual's training or service, as well as the nature of that service or training. 38 U.S.C. 4312(h). A service member's reemployment rights must be recognized as long as the individual has complied with the eligibility requirements specified in the Act.
In order to protect reemployment rights under USERRA, the returning service member must make a timely return to, or application for reinstatement in, his or her employment position after completing the tour of duty. 38 U.S.C. 4312(a)(3). Sections 4312(e) and (f) establish the required steps of the reinstatement process. 38 U.S.C. 4312(e), (f). Section 4312(e) establishes varying time periods for requesting reinstatement based on the length of the individual's military service. This provision also addresses the time periods for reporting to the employer or applying for reemployment by a person who is hospitalized for, or convalescing from, an injury or illness incurred in, or aggravated during, the performance of service. Section 4312(f) describes the documentary evidence that the service member must submit to the employer in order to establish that the service member meets the statutory requirements for reinstatement. The proposed regulations implement these documentation requirements at 1002.121 to .123.
Proposed section 1002.115 explains the three statutory time periods for making a request for reinstatement, depending on the length of the period of military service, except in the case of an employee's absence for an examination to determine fitness to perform service. The proposed regulation also specifies the actions that must be taken by the employee. Section 4312(e)(1)(A)(i) of USERRA provides that the employee reporting back to the employer following a period of service of less than 31 days must report:
(i) Not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence * * *
38 U.S.C. 4312(e)(1)(A)(i). The Department interprets this provision as requiring the employee to report at the beginning of the first full shift on the first full day following the completion of service, provided the employee has a period of eight hours to rest following safe transportation to the person's residence.
If it is impossible or unreasonable for the employee to report within the above time period, he or she must report to the employer as soon as possible after the expiration of the eight-hour period.
If the individual served between 31 and 180 days, he or she must make an oral or written request for reemployment no more than 14 days after completing service. If it is impossible or unreasonable for the employee to apply within 14 days through no fault of the employee, he or she must submit the application not later than the next full calendar day after it becomes possible to do so. Finally, if the individual served more than 180 days, he or she must make an oral or written request for reemployment no more than 90 days after completing service.
Proposed section 1002.116 addresses the situation where a service member is unable to meet the foregoing timeframes due to the individual's hospitalization for or convalescence from a service-related illness or injury. Such a person must comply with the notification procedures determined by the length of service, after the time period required for the person's recovery. The recovery period may not exceed two years unless circumstances beyond the individual's control make notification within the required two-year period impossible or unreasonable.
Proposed section 1002.117 covers the situation where the employee fails to report or to submit a timely application for reemployment. Such failure does not automatically divest the individual of his or her statutory reemployment rights.
Proposed sections 1002.118 through 1002.123 establish procedures for notifying the employer that the service member intends to return to work. These sections also address the requirement that the returning service member provide documentation to the employer in certain instances. The documentation provides evidence that the service member meets three of the basic requirements for reemployment: timely application for reinstatement, permissible duration of service, and appropriate type of service discharge. USERRA expressly provides that the Secretary may prescribe, by regulation, the documentation necessary to demonstrate that a service member applying for employment or reemployment meets these requirements. Proposed section 1002.120 makes clear that the service member does not forfeit reemployment rights with one employer by working for another employer after completing his or her military service, as long as the service member complies with USERRA's reinstatement procedures.
USERRA makes entitlement to reemployment benefits dependent on the characterization of an individual's separation from the uniformed service, or “character of service.” 38 U.S.C. 4304. The general requirement is that the individual's service separation be under other than dishonorable conditions. Proposed section 1002.135 lists four grounds for terminating the individual's reemployment rights based on character of service: (i) Dishonorable or bad conduct discharge; (ii) “other than honorable” discharge as characterized by the regulations of the appropriate service Secretary; (iii) dismissal of a commissioned officer by general court-martial or Presidential order during a war (10 U.S.C. 1161(a)); and, (iv) removal of a commissioned officer from the rolls because of unauthorized absence from duty or imprisonment by a civil authority (10 U.S.C. 1161(b)). 38 U.S.C. 4304(1)-(4). The uniformed services determine the individual's character of service, which is referenced on Defense Department Form 214. For USERRA purposes, Reservists who do not receive character of service certificates are considered honorably separated; many short-term tours of duty do not result in an official separation or the issuance of a Form 214.
Proposed sections 1002.137 and 1002.138 address the consequences of a subsequent upgrading of an individual's disqualifying discharge. Upgrades may be either retroactive or prospective in effect. An upgrade with retroactive effect may reinstate the individual's reemployment rights provided he or she otherwise meets the Act's eligibility criteria, including having made timely application for reinstatement. However, a retroactive upgrade does not restore entitlement to the back pay and benefits attributable to the time period between the individual's discharge and the upgrade.
USERRA provides three statutory defenses with which an employer may defend against a claim for USERRA benefits. The employer bears the burden of proving any of these defenses. 38 U.S.C. 4312(d)(2)(A)-(C).
An employer is not required to reemploy a returning service member if the employer's circumstances have so changed as to make such reemployment impossible or unreasonable. 38 U.S.C. 4312(d)(1)(A). In view of USERRA's remedial purposes, this exception must be narrowly construed. The employer bears the burden of proving that changed circumstances make it impossible or unreasonable to reemploy the returning veteran. 38 U.S.C. 4312(d)(2)(A); proposed section 1002.139. The change must be in the pre-service employer's circumstances, as distinguished from the circumstances of its employees. For example, the defense of changed circumstances is available where reemployment would require the creation of a “useless job or mandate reinstatement where there has been a reduction in the workforce that reasonably would have included the veteran.” H.R. Rep. No. 103-65, at 25 (1993), citing
An employer is also not required to reemploy a returning service member if such reemployment would impose an undue hardship on the employer. 38 U.S.C. 4312(d)(1)(B). As explained in USERRA's legislative history, this defense only applies where a person is not qualified for a position due to disability or other bona fide reason, after reasonable efforts have been made by the employer to help the person become qualified. H.R. Rep. No. 103-65, at 25 (1993). USERRA defines “undue hardship” as actions taken by the employer requiring significant difficulty or expense when considered in light of the factors set out in 38 U.S.C. 4303(15). USERRA defines “reasonable efforts” as “actions, including training provided by an employer, that do not place an undue hardship on the employer.” 38 U.S.C. 4303(10). USERRA defines “qualified”
The third statutory defense against reemployment requires the employer to establish that “the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.” 38 U.S.C. 4312(d)(1)(C), (2)(C). USERRA does not define “significant period.” Under both USERRA and its predecessor, the VRRA, a person holding a seasonal job may have reemployment rights if there was a reasonable expectation that the job would be available at the next season.
Proposed section 1002.149 implements section 4316(b) of the Act, which establishes the employee's general non-seniority based rights and benefits while he or she is absent from the employment position due to military service. 38 U.S.C. 4316(b). The employer is required to treat the employee as if he or she is on furlough or leave of absence. 38 U.S.C. 4316(b)(1)(A). The employee is entitled to non-seniority employment rights and benefits that are available to any other employee “having similar seniority, status, and pay who [is] on furlough or leave of absence. * * *” 38 U.S.C. 4316(b)(1)(B). These non-seniority rights and benefits may be provided “under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.”
The Department also interprets section 4316(b) of the Act to mean that an employee who is absent from a position of employment by reason of service is not entitled to greater benefits than would be generally provided to a similarly situated employee on non-military furlough or leave of absence.
Proposed section 1002.152 addresses the circumstances under which an employee waives entitlement to non-seniority based rights and benefits. Section 4316(b)(2) of the Act provides that an employee who “knowingly” states in writing that he or she will not return to the employment position after a tour of duty will lose certain rights and benefits that are not determined by seniority. 38 U.S.C. 4316(b)(2). The Department intends for principles of Federal common law pertaining to a waiver of interest to apply in determining whether such notice is effective in any given case.
Proposed section 1002.153 clarifies that an employer may not require the employee to use his or her accrued leave to cover any part of the period during which the employee is absent due to military service. 38 U.S.C. 4316(d). The employee must be permitted upon request to use any accrued vacation, annual or similar leave with pay during the period of service. The employer may require the employee to request permission to use such accrued leave. However, sick leave is not comparable to vacation, annual or similar types of leave; entitlement to sick leave is conditioned on the employee (or a family member) suffering an illness or receiving medical care. An employee is therefore not entitled to use accrued sick leave solely to continue his or her civilian pay during a period of service.
Section 4317 of the Act provides that service members who leave work to perform military service have the right to elect to continue their existing employer-based health plan coverage for a period of time while in the military. Section 4317 also requires that the employee and eligible dependents must, upon reemployment of the service member, be reinstated in the employer's health plan without a waiting period or exclusion that would not have been imposed had coverage not been suspended or terminated due to service in the uniformed services. The employee need not elect to continue health plan coverage during a period of uniformed service in order to be entitled to reinstatement in the plan upon reemployment. Section 4317 of USERRA is the exclusive source in USERRA of service members' rights with respect to the health plan coverage they receive in connection with their employment. Section 4317 therefore controls the entitlement of a person to coverage under a health plan, and supersedes more general provisions of the Act dealing with rights and benefits of service members who are absent from employment.
Under USERRA, the term “employer” is defined broadly to cover entities, such as insurance companies or third party plan administrators, to which employer responsibilities such as administering employee benefit plans or deciding benefit claims have been delegated. “Health plan” is defined to include an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or other arrangement under which health
USERRA's health plan provisions are similar but not identical to the continuation of health coverage provisions added to Federal law by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). As with COBRA, the Act permits the continuation of employment-based coverage. Unlike COBRA, USERRA's continuation coverage is available without regard to either the size of the employer's workforce or to whether the employer is a government entity.
Proposed section 1002.164 addresses the length of time the service member is entitled to continuing health plan coverage. Section 4317(a)(1) provides that the maximum period of continued coverage is either 18 months or the period of military service (beginning on the date the absence begins and ending on the day after the service member fails to apply for reemployment), whichever occurs first.
Under section 4317(a)(2), implemented by proposed section 1002.166, a service member who elects to continue employer-provided health plan coverage may be required to pay no more than 102 percent of the full premium (the employee's share plus the employer's share) for such coverage, except that service members who perform service for fewer than 31 days may not be required to pay more than the employee share, if any, for such coverage. The amount of the full premium is determined in the same manner as for COBRA under section 4980B(f)(4) of the Internal Revenue Code of 1986. 26 U.S.C. 4980B(f)(4). The legislative history of USERRA indicates that the purpose of these provisions, and in particular the requirement that service members pay only the employee share for coverage during service lasting fewer than 31 days, is to ensure that there is no gap in health insurance coverage for the service member's family during a short period of service. Dependents of Reserve Component members are entitled to participate in the military health care system, called TRICARE, only if the period of service exceeds 30 days.
USERRA does not require that any particular type of health plan coverage be provided. The statute requires only that the employer, and hence the plan, permit the service member to continue the coverage that he or she already has obtained through the employment relationship, including family and dependent coverage. USERRA does not provide specific guidance regarding how or within what time period the continuing coverage is to be elected. Proposed section 1002.165 provides that plan administrators and fiduciaries may develop reasonable requirements and operating procedures for the election of continuing coverage, consistent with the Act and the terms of the plan. Such procedures must take into consideration the requirement in USERRA section 4312(b) that where military necessity prevents the service member from giving the employer notice that he or she is leaving for military duty, or where giving such notice would be impossible or unreasonable, plan requirements may not be imposed to deny the service member continuation coverage.
The Department invites comments as to whether this approach—allowing health plan administrators latitude to develop reasonable requirements for employees to elect continuation coverage—best effectuates the purpose of the statute. Alternatively, the Department requests comments on the question whether these USERRA regulations should establish a date certain by which time continuing health plan coverage must be elected. Moreover, should a service member be permitted to delay electing continuation health plan coverage under some circumstances? Finally, in a case where health plan coverage was terminated or suspended by reason of military service, if the employee is permitted to delay reinstatement to the health plan for a period of time after the date of reemployment, the Department invites comments as to whether such delayed reinstatement coverage should be subject to an exclusion or waiting period.
As with every other right and benefit guaranteed by USERRA, the employer is free to provide continuation health plan coverage that exceeds that which is required by the Act. For example, some employers do not require the service member to pay more than the ordinary employee premium for continuation health coverage during an extended period of service in the uniformed services.
Proposed sections 1002.167-1002.168 explain the rights of a reemployed service member whose health plan coverage has been terminated as a result of his or her failure to elect continuation coverage, or length of service. At the time of reemployment, no exclusion or waiting period may be imposed where one would not have been imposed if the coverage of the service member had not terminated as a result of service in the uniformed services. This provision also applies to the coverage of any other person who is covered under the service member's policy, such as a dependent. Injuries or illnesses determined by the Secretary of Veterans' Affairs to have been incurred or aggravated during service are excluded from the ban on exclusions and waiting periods; however, the service member and any dependents must be reinstated as to all other medical conditions covered by the plan.
USERRA provides for the continuation of health coverage available to the service member in connection with his or her employment, so, generally, if the employer cancels health coverage for its employees while the service member is performing service, or if the employer goes out of business, the service member's coverage terminates also. Under USERRA, the treatment of multiemployer health plans provides an exception to this result. Special rules for multiemployer plans are the focus of proposed section 1002.169. This provision requires continued health plan coverage in a multiemployer plan even when the service member's employer no longer exists, or no longer participates in the plan. Any liability under the multiemployer plan for employer contributions and benefits under USERRA is to be allocated as the sponsor maintaining the plan provides. If the sponsor does not provide for an allocation of responsibility under these circumstances, the liability is allocated to the last employer employing the person before the period of uniformed service. Where that employer is no longer functional, the liability is allocated to the plan.
One of the stated purposes of USERRA is “to minimize the disruption to the lives of persons performing service in the uniformed services * * * by providing for [their] prompt reemployment.” 38 U.S.C. 4301(2). Section 4313 requires that a returning service member who meets the
In construing an early precursor statute to USERRA, the Selective Training and Service Act of 1940, 50 U.S.C. Appendix, 308(b, c), the Supreme Court recognized a basic principle embedded in early protections provided for veterans, which was to become a bedrock concept of all future similar legislation. Thus, in
Proposed sections 1002.191 and 1002.192 implement general principles related to a returning veteran's right to reemployment in this escalator position. Proposed sections 1002.193 and 1002.195 clarify that seniority, status, pay, length of service, and service-related disability may affect the service member's reemployment position. Proposed sections 1002.196 and 1002.197 explain the employer's obligations to reemploy the service member based on the duration of the person's absence from the work place. Proposed section 1002.198 describes the criteria to be followed by the employer in making reasonable efforts to enable the service member to qualify for the reemployment position. Finally, proposed section 1002.199 provides guidance for employers in determining the priority of two or more service members who are eligible for the same employment position.
In some workplaces, where opportunities for promotion are conditioned upon the employee passing a skills test or examination, determining the escalator position will require administering a makeup promotional exam. If a reemployed service member was eligible to take such a promotional exam and missed it while performing military service, the employer should provide the employee with an opportunity to take the missed exam after a reasonable period of time to acclimate to the employment position.
The Department understands the statutory term “qualify” in 38 U.S.C. 4313 to include the employer's affirmative obligation to make reasonable efforts to assist the returning employee in acquiring the ability to perform the essential tasks of the reemployment position. This understanding is reflected in the language used in the regulations. The Department requests comments on whether this interpretation is proper.
The statute makes the duration of a returning employee's period of service a critical factor in determining the reemployment position to which the employee is entitled upon return from service. After service of 90 days or less, the person is entitled to reinstatement in the position of employment in which he or she would have been employed if not for the interruption in employment due to uniformed service (the escalator position). 38 U.S.C. 4313(a)(1)(A). The employer must make reasonable efforts to assist the individual in becoming qualified for the reemployment position. In the event the returning employee cannot become qualified for the escalator position despite reasonable efforts by the employer, the returning employee is entitled to the employment position in which he or she was employed on the date that the period of service commenced. 38 U.S.C. 4313(a)(1)(B). These requirements are implemented in proposed section 1002.196.
The service member returning from a period of service longer than 90 days is
In some instances, the service member may not be able to qualify for either the escalator position or the pre-service position (or a position similar in seniority, status, and pay to either of these positions) despite reasonable employer efforts. In such an event, the employee is entitled to be reemployed in any other position that is the nearest approximation to the escalator position. If there is no such position for which the returning service member is qualified, he or she is entitled to reemployment in any other position that is the nearest approximation to the preservice position. In either event, the returning service member must be reemployed with full seniority. 38 U.S.C. 4313(a)(4). This requirement is implemented by proposed sections 1002.196(c) and .197(c).
Depending on the circumstances, section 4313 either permits or requires the employer to reemploy a returning service member in a position with equivalent (or the nearest approximation to “equivalent”) seniority, status and pay to the escalator or pre-service position. 38 U.S.C. 4313(a)(2)(A), (B), (3)(A), (B). Although “seniority” and “pay” are generally well-understood terms, USERRA does not define “status” as it is used in section 4313 of the Act. Case law interpreting VRRA, a precursor to USERRA, recognized status as encompassing a broader array of rights than either seniority or pay. Job status varies from position to position, but generally refers to the incidents or attributes attached to, and inherent in, a particular job. The term often includes the rank or responsibility of the position, its duties, location, working conditions, and the pay and seniority rights attached to the position.
Notwithstanding the escalator principle, USERRA does not require an employer to reinstate a returning service member in an employment position if he or she is not qualified to perform the civilian job. See proposed section 1002.198. USERRA defines “qualified” as “having the ability to perform the essential tasks of the position.” 38 U.S.C. 4303(9). An individual's performance qualifications are a function of his or her ability to perform the “essential tasks” of the employment position. This regulation provides guidelines for determining whether a given task is essential for proper performance of the position. In general, whether a task is essential for a position will depend on its relationship to the actual performance requirements of the position rather than, for example, the criteria enumerated in a job description. An employer may not decline to rehire a returning service member simply because he or she is unable to do some auxiliary, but nonessential, parts of the job. The Department invites comments as to whether this interpretation best effectuates the purpose of this provision.
Proposed section 1002.198 describes the employer's obligation to assist a returning service member for civilian reemployment in becoming qualified for a civilian position. USERRA requires the employer to make reasonable efforts to enable the returning service member to qualify for a position that he or she would be entitled to if qualified. Section 4303(10) defines “reasonable efforts” as “actions, including training provided by an employer, that do not place an undue hardship on the employer.” 38 U.S.C. 4303(10). Section 4303(15) defines “undue hardship” as “actions [taken by an employer] requiring significant difficulty or expense, when considered in light of * * * the overall financial resources of the employer” and several other stated factors. 38 U.S.C. 4303(15). Depending upon an employer's size and resources, a given level of effort might be an undue hardship for one employer and yet reasonable for another. The employer has the burden of proving that the training, retraining, or other efforts to enable the returning employee to qualify would impose an undue hardship. The proposed regulation describes the criteria that apply in determining whether the steps for aiding the service member in becoming qualified impose an undue hardship on the employer.
Proposed section 1002.199 implements section 4313(b), which governs the priority of reemploying two (or more) service members who are entitled to reemployment in the same position. 38 U.S.C. 4313(b). The individual who first vacated the employment position for military service has the highest priority for reemployment. 38 U.S.C. 4313(b)(1). If this priority means another returning service member is denied reemployment in that position, the USERRA rules that give reemployment options to the employer would govern the reemployment of the second person. Thus, the second service member is entitled to “any other position” offering status and pay similar to the denied position according to the statutory rules generally applicable to returning service members. 38 U.S.C. 4313(b)(2)(A). A disabled service member in this situation would be entitled to any other position offering status and pay similar to the denied position according to the rules governing disabled service members. 38 U.S.C. 4313(b)(2)(B).
Section 4316(a) provides that a reemployed service member is entitled to “the seniority and other rights and benefits determined by seniority” that the service member had attained as of the date he or she entered the service, together with the additional seniority he or she would have attained if continuously employed during the period of service. 38 U.S.C. 4316(a). As with the principles governing the determination of the reemployment position, this provision reflects the escalator principle. As applied to seniority rights under section 4316(a), the escalator principle entitles the returning service member to the “same seniority and other rights and benefits determined by seniority that [the service member] would have attained if [his or
Proposed section 1002.211 makes clear that section 4316(a) is not a statutory mandate to impose seniority systems on employers. Rather, USERRA requires only that those employers who provide benefits based on seniority restore the returning service member to his or her proper place on the seniority ladder.
Proposed section 1002.212 adopts the basic definition of seniority-based rights and benefits developed in Supreme Court decisions. This definition imposes two requirements: first, the benefit must be provided as a reward for length of service rather than a form of short-term compensation for services rendered; second, the service member's receipt of the benefit, but for his or her absence due to service, must have been reasonably certain.
Proposed section 1002.213 further defines one aspect of seniority-based rights and benefits: the requirement that receipt of the benefit be “reasonably certain.” The proposed regulation describes a “reasonably certain” likelihood as a “high probability” that the returning service member would have obtained the seniority-based benefit if continuously employed. A “high probability” is less than an “absolute certainty,” which the Supreme Court has rejected in analyzing the degree of probability a reemployed service member must satisfy in order to establish that his or her advancement would have been “reasonably certain” but for the period of service.
Proposed section 1002.214 emphasizes that the returning employee is also entitled to claim perquisites of seniority that first became available to co-workers or that were modified while he or she was in the service. That the employer did not offer the particular benefit until after the individual began the service is not a justification for denying the benefit to the returning service member. Similarly, if a benefit is modified or eliminated, the change would affect the returning service member. This requirement flows from the fact that the returning service member must be restored to the seniority rights and benefits that he or she would have attained with reasonable certainty if he or she had remained continuously employed during the period of service.
USERRA imposes additional requirements in circumstances involving the reemployment of a disabled service member. A disabled service member is entitled, to the same extent as any other individual, to the escalator position he or she would have attained but for military service. If the disability is not an impediment to the service member's qualifications for the escalator position, then the disabling condition is irrelevant for USERRA purposes. If the disability limits the service member's ability to perform the job, however, the statute imposes a duty on the employer to make reasonable efforts to accommodate the disability. 38 U.S.C. 4313(a)(3). In some instances, an employer is unable to accommodate a service member's disability despite reasonable efforts. If, despite the employer's reasonable efforts to accommodate the disability, the returning disabled service member cannot become qualified for his or her escalator position, that person is entitled to be reemployed “in any other position which is equivalent in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer.” 38 U.S.C. 4313(a)(3)(A). If no such position exists, the service member is entitled to reemployment “in a position which is the nearest approximation * * * in terms of seniority, status, and pay consistent with circumstances of such person's case.” 38 U.S.C. 4313(a)(3)(B).
Proposed section 1002.225 sets forth the priority of reemployment positions for which the disabled service member should be considered. The regulation also implements the statutory requirement for reasonable accommodation of the returning service member's disability. Such accommodations may include placing the reemployed person in an alternate position, on “light duty” status; modifying technology or equipment used in the job position; revising work practices; or, shifting job functions. The appropriate level of accommodation depends on the nature of the service member's disability, the requirements for properly performing the job, and any other circumstances surrounding the particular situation.
The employer must make reasonable accommodations for any disability incurred in, or aggravated during, a period of service. The accommodation requirement is not limited to disabilities
A returning service member may have rights under USERRA based on a service-related disability that is not permanent. A service member who incurs a temporary disability may be entitled to interim reemployment in an alternate position provided he or she is qualified for the position and the disability will not affect his or her ability to perform the job. If no such alternate position exists, the disabled service member would be entitled to reinstatement under a “sick leave” or “light duty” status until he or she completely recovers.
In identifying an alternate position for a disabled service member, the focus should be on the returning service member's ability to perform the essential duties of the job. The position must be one that the person can safely perform without unreasonable risk to the person or fellow employees. The disabled service member is required to provide information on his or her education and experience, the extent of the disability, and his or her present capabilities. The employer then has the duty to disclose all positions that the service member may be qualified to perform. Because the employer has greater knowledge of the various positions and their requirements in the organization, the employer, and not the service member, is exclusively responsible for accommodating the disability by identifying suitable positions within the service member's abilities and capabilities. Proposed sections 1002.225 and .226 implement USERRA's requirements regarding disabled employees.
The escalator principle also determines the returning service member's rate of pay after an absence from the workplace due to military service. As with respect to benefits and the reemployment position, the application of this fundamental principle with respect to pay is intended to restore the returning service member to the employment position that he or she would have occupied but for the interruption in employment occasioned by military service.
In some workplaces, merit pay increases are conditioned upon the employee passing a skills or performance evaluation. The employer should allow a reasonable period of time for the employee to become acclimated in the escalator position before such an evaluation is administered. In order that the employee not be penalized financially for his or her military service, the employee must be reemployed at the higher rate of pay, assuming that it is reasonably certain that the employee would otherwise have attained the merit pay increase during the period of military service. This requirement is similar to the requirement in Section 1002.193, which obliges an employer to give a reemployed employee, after a reasonable amount of time to adjust to the reemployment position, a missed skills test or examination that is the basis of an opportunity for promotion. The Department invites comments as to whether this interpretation best effectuates the purpose of this provision, or whether the issue of merit pay requires more detailed treatment in these regulations.
What is critical is not how the employer characterizes the compensation, but whether it would have been attained with reasonable certainty if not for the service in the uniformed services. In determining rate of pay, as in other situations, application of the escalator principle may leave the returning service member with less than he or she had before performing service. Thus, if nondiscriminatory adverse changes in the employment position's pay structure would with reasonable certainty have lowered the compensation rate during the period of service if he or she had remained continuously employed, the escalator principle may operate to diminish the returning service member's pay.
Section 4316(c) of USERRA provides service members special protection from discharge from civilian employment after returning from uniformed service. If the individual served over 180 days before reemployment, then he or she may not be discharged from the employment position within one year after reemployment except for cause. 38 U.S.C. 4316(c)(1). If the individual served between 31 and 180 days in the military, he or she may not be discharged from the employment position within 180 days after reemployment except for cause. 38 U.S.C. 4316(c)(2). A reinstated service member whose duration of service lasted 30 days or less has no similar protection from discharge; however, the individual is protected by USERRA's anti-discrimination provisions, 38 U.S.C. 4311, as explained in proposed sections 1002.18-.23. Proposed section 1002.247 elaborates the general rules for protection against discharge based on the duration of service prior to reemployment.
Prohibiting a reemployed service member's discharge, except for cause, ensures that the service member has a reasonable amount of time to get accustomed to the employment position after a significant absence. A period of readjustment may be especially warranted if the service member has assumed a new employment position after the military service. The discharge protection also guards against an employer's bad faith or
Section 4316(c) does not provide complete protection from discharge to a reemployed service member for the duration of the protected period. An employer may dismiss a reemployed service member even during the protected period for just cause. Depending on the circumstances of the specific case, just cause may include unacceptable or unprofessional public behavior, incompetent or inefficient performance of duties, or criminal acts. An employer may also discharge the service member for cause if the application of the escalator principle results in a legitimate layoff or in the elimination of the job position itself, provided the person would have faced the same consequences had he or she remained continuously employed. Proposed section 1002.248 provides general guidelines for establishing just cause to discharge a reemployed service member during the protection period, and places the burden of proof on the employer to demonstrate that it is reasonable to discharge the person.
USERRA establishes specific rights for reemployed service members in their employee pension benefit plans; the Act's specific provisions for pension benefit plans supersede general provisions elsewhere in the statute. 38 U.S.C. 4316(b)(6). The Act defines an employee pension benefit plan in the same way that the term is defined under the Employee Retirement Income Security Act of 1974 (ERISA).
Proposed sections 1002.259 to .267 describe the types of employee pension benefit plans that come within the Act and the pension benefits that must be provided to reemployed service members. Although USERRA relies on the ERISA definition of an employee pension benefit plan, some plans excluded from ERISA coverage may be subject to USERRA. For example, USERRA (but not ERISA) extends coverage to plans sponsored by religious organizations and plans established under State or Federal law for governmental employees. Benefits paid pursuant to federally legislated programs such as Social Security or the Railroad Retirement Act, however, are not covered by USERRA. USERRA coverage also does not include benefits under the Thrift Savings Plan (TSP); the rights of reemployed service members to benefits under the TSP are governed by another Federal statute.
As proposed sections 1002.259 to .267 illustrate, each period of uniformed service is treated as an uninterrupted period of employment with the employer(s) maintaining the pension plan in determining eligibility for participation in the plan, the non-forfeitability of accrued benefits, and the accrual of service credits, contributions and elective deferrals (as defined in section 402(g)(3) of the Internal Revenue Code of 1986 (IRC)) under the plan. 38 U.S.C. 4318(a)(2)(B). As a result, for purposes of calculating these pension benefits, or for making contributions or deferrals to the plan, the reemployed service member is treated as though he or she had remained continuously employed for pension purposes.
Proposed sections 1002.261 and 1002.262 clarify who must make the contribution and/or deferral attributable to a particular period of military service and the timeframes within which payments are to be made to the plan. The employer who reemploys the service member is responsible for funding any employer contribution to the plan to provide the benefits described in the Act and the regulation. 38 U.S.C. 4318(b)(1). Some plans do not require or permit employer contributions. In that case, the plan is funded by employee contributions or elective deferrals. Other plans provide that the employer will match a certain portion of the employee contribution or deferral. If employer contributions are contingent on employee contributions or elective deferrals, such as where the employer matches all or a portion of the employee deferral or contribution, the reemployed service member is entitled to the employer contribution only to the extent that he or she makes the employee contributions or elective deferrals to the plan. 38 U.S.C. 4318(b)(2). A reemployed service member has the right to make his or her contributions or elective deferrals, but is not required to do so. Elective deferrals can be made up only to the extent that the employee has compensation from the employer that can be deferred. Proposed section 1002.262 provides that, if an individual cannot make up missed contributions as an elective deferral because he or she does not have enough compensation from the employer to defer (for example, if the individual is no longer employed by the employer), the plan must provide an equivalent opportunity for the individual to receive the maximum employer matching contributions that were available under the plan during the period of uniform service through a match of after-tax contributions.
USERRA is silent with respect to the amount of time allowed the employer to pay to the plan the contributions attributable to a reemployed service member's period of military service. It is the view of the Department that employer contributions to a pension plan that are not contingent on employee contributions or elective deferrals must be made no later than thirty days after the date of the person's reemployment. Interested parties are requested to comment on this proposed requirement, implemented in proposed section 1002.262. Specifically, the Department requests public comment on whether the proposed thirty-day period is too long or too short.
Where pension benefits are derived from employee contributions or elective deferrals, or from a combination of employee contributions or elective deferrals and matching employer contributions, the reemployed service member may make his or her contributions or deferrals during a time period starting with the date of reemployment and continuing for up to three times the length of the employee's immediate past period of military service, with the repayment period not to exceed five years. 38 U.S.C. 4318(b)(2); proposed section 1002.262. No payment by the service member may exceed the amount that would have been required or permitted during the period of time had the service member remained continuously employed. 38 U.S.C. 4318(b)(2). Any permitted or required amount of employee contributions or elective deferrals would be adjusted for any employee contributions or elective deferrals made to the plan during the employee's period of service. Any employer contributions that are contingent on employee contributions or elective deferrals must be made according to the plan's requirements for employer matching contributions. The Department also invites comments as to whether this interpretation best
USERRA does not specify whether the returning service member is entitled to partial credit in return for making up part (but not all) of the missed employee contributions or elective deferrals, but it does not require that the employee make up the full amount. Given that returning service members often face financial hardships on their return to civilian employment, and in view of the remedial purposes of USERRA, the Department interprets the Act to permit the employee to partially make up missed employee contributions (including required employee contributions to a defined benefit plan) or elective deferrals. In such a situation, the employer is required to make any contributions that are contingent on employee make-up contributions or elective deferrals only to the extent that the employee makes such partial contributions or elective deferrals.
Under proposed section 1002.264, if the service member has withdrawn his or her account balance from the employee pension benefit plan prior to entering military service, he or she must be allowed to repay the withdrawn amounts upon reemployment. The amount to be repaid also includes any interest that would have been earned had the monies not been withdrawn. Repayment entitles the individual to appropriate credit in the plan. The reemployed service member may make his or her contributions or deferrals during a time period starting with the date of reemployment and continuing for up to three times the length of the employee's immediate past period of military service, with the repayment period not to exceed five years; during the time period provided by 26 U.S.C. 411(a)(7)(C) (if applicable); or within such longer time period as may be agreed to between the employer and service member. Proposed section 1002.264 applies to defined benefit plans and defined contribution plans. The Department invites comments on whether or how this section should apply to defined contribution plans.
Section 4318(b)(3) describes the method for calculating the reemployed service member's compensation for the period of military service to determine the amount the employer and service member must contribute under the plan. 38 U.S.C. 4318(b)(3). Proposed section 1002.267 provides that the compensation rate the reemployed service member would have earned had he or she remained continuously employed provides the usual benchmark. If that rate cannot be determined with reasonable certainty (for example, where the rate varies based on commissions or tips), the compensation rate may be based on the service member's average compensation rate during the 12-month period before the service period. For an employee who worked fewer than 12 months before entering the service, the entire employment period just prior to the service period may be used.
The employer must allocate its contribution on behalf of the employee in the same manner as contributions made for other employees during the period of the service member's service were allocated. However, under proposed section 1002.265, the employer is not required to allocate accrued earnings and forfeitures to the reemployed service member. 38 U.S.C. 4318(b)(1).
Special rules apply to multiemployer plans. 38 U.S.C. 4318(b)(1). Proposed section 1002.266 focuses on the operation of multiemployer plans. ERISA defines the term “multiemployer plan” as a plan to which more than one employer is required to contribute; which is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and more than one employer; and, which satisfies regulations prescribed by the Secretary of Labor. 29 U.S.C. 1002(37). An individual's period of uniformed service that qualifies as employment for purposes of section 4318(a)(2) is also employment under the terms of the pension benefit plan; any applicable collective bargaining agreement under 29 U.S.C. 1145; or, any similar Federal or State law requiring employers who contribute to multiemployer plans to make contributions as specified in plan documents.
With a multiemployer plan, a service member does not have to be reemployed by the same employer for whom he or she worked prior to the period of service in order to be reinstated in the pension plan. As long as the employer is a contributing employer to the plan, the service member is entitled to be treated as though he or she experienced no break in service under the plan. Proposed section 1002.266 describes the allocation of the employer's obligation to fund employer contributions for reemployed service members participating in multiemployer plans. Initially, the benefits liability is to be allocated as specified by the sponsor maintaining the plan. 38 U.S.C. 4318(b)(1)(A). Both of the bargaining parties, usually the union(s) and the employers, and the plan trustees of a multiemployer plan are sponsors of the plan. The initial allocation by the plan sponsor(s) is likely to vary from plan to plan. For purposes of USERRA, if the plan documents make no provision to allocate the obligation to contribute, then the individual's last employer before the service period is liable for the employer contributions. In the event that entity no longer exists or functions, the plan must nevertheless provide coverage to the service member. 38 U.S.C. 4318(b)(1)(B).
By authorizing the plan sponsors to designate how the contribution is to be paid, Congress intended to give employers, employee organizations and plan trustees (all of whom are plan sponsors) flexibility in structuring the payment obligation to suit the plan's particular circumstances. “The Committee intends that multiemployer pension plan trustees or bargaining parties should be able to adopt uniform standard rules under which another employer, such as the last employer for which the individual worked before going into the uniformed service or the employer for which the returning service member had the most service during a given period following release from the uniformed service, may be considered the ‘reemploying' employer for purposes of the pension provisions of Chapter 43. The Committee also intends for multi-employer pension plan trustees to have the right to determine that it would be more appropriate not to make any individual employer liable for such costs and thus to be able to adopt rules under which returning service members' reconstructed benefits would be funded out of plan contributions and other assets without imposing a specific additional funding obligation on any one employer.” S. Rep. No. 103-158, at 65 (1993). With respect to both multiemployer and single employer plans, however, the Committee indicated: “It is the intent of the Committee that, with respect to allocations to individual account plans under section 3(34) of ERISA,
If an employer participating in a multiemployer plan reemploys an individual who is entitled to pension benefits attributable to military service, then the employer must notify the plan administrator of the reemployment within 30 days. 38 U.S.C. 4318(c). USERRA requires this notice because multiemployer plan administrators may not be aware that a contributing employer has reemployed a person who may have a pension claim arising from his or her military service. In contrast, administrators of single employer pension plans are more likely to have access to such information. This notification requirement is implemented by proposed section 1002.266.
Although a service member who is not reemployed under the Act would not be entitled to pension benefits for his or her period of service, any vested accrued benefit in the plan to which the service member was entitled prior to entering military service would remain intact whether or not he or she was reemployed. Joint Explanatory Statement on H.R. 995, 103-353, at 2507 (1994); H.R. Rep. No. 103-65, Part I, at 36-37 (1993). The terms of the plan document control the manner and timing of distributions of vested accrued benefits from the plan if the service member is not reemployed by a participant employer.
USERRA provides specific guidance on certain aspects of the reemployed service member's pension plan rights. At the same time, employers, fiduciaries and plan administrators must also comply with other laws that regulate plan administration but are beyond the scope of these proposed regulations. Federal and State laws governing the establishment and operation of pension plans, such as ERISA or the Internal Revenue Code of 1986, as amended, and the regulations of the Pension Benefit Guaranty Corporation, continue to apply in the context of providing benefits under USERRA. Thus, for example, while section 4318(b)(1)(A) provides that liability for funding multiemployer pension plan benefits for a reemployed service member shall be allocated as the plan sponsor specifies, laws other than USERRA govern the technical aspects of the allocation.
USERRA authorizes the Secretary of Labor to provide assistance to any person regarding the employment and reemployment rights and benefits provided under the statute. 38 U.S.C. 4321. The Secretary acts through the Veterans' Employment and Training Service (VETS). USERRA promotes the resolution of complaints without resort to litigation. In order to facilitate this process, section 4321 allows VETS to request assistance from other Federal and State agencies and volunteers engaged in similar or related activities. Proposed section 1002.277 describes VETS' authority to provide assistance to both employees and employers. VETS' assistance is not contingent upon the filing of a USERRA complaint.
Proposed section 1002.288 implements section 4322, which authorizes VETS to enforce an individual's USERRA rights. Any person claiming rights or benefits under USERRA may file a complaint with VETS if his or her employer fails or refuses to comply with the provisions of USERRA, or indicates that it will not comply in the future. 38 U.S.C. 4322(a). This avenue, however, is optional. Nothing in section 4322 requires an individual to file a complaint with VETS, to request assistance from VETS, or to await notification from VETS of the right to bring an enforcement action.
Proposed section 1002.288 also implements the statutory criteria for the form of a complaint. 38 U.S.C. 4322(b). Any complaint submitted to VETS must be in writing, using VETS Form 1010, which may be found at
Section 1002.289 sets forth VETS' authority to use subpoenas in connection with USERRA investigations. VETS may (i) require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation; and (ii) enforce the subpoena by requesting the Attorney General to apply to a district court for an appropriate order. 38 U.S.C. 4326(a)-(b). VETS' subpoena authority does not apply to the judicial or legislative branch of the Federal Government. 38 U.S.C. 4326(d).
Section 4323 establishes the procedures for enforcing USERRA rights against a State or private employer. “State” includes the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and other territories of the United States. 38 U.S.C. 4303(14). The political subdivisions of a State (counties, municipalities and school districts), however, are private employers for enforcement purposes. 38 U.S.C. 4323(j). Although USERRA does not define “private employer,” the term includes all employers other than the Federal Government or a State. Proposed sections 1002.303 to .314 implement section 4323 of the Act.
An aggrieved individual may initiate a USERRA action either by filing an action in court or by filing a complaint with VETS. If a complaint is filed with VETS and voluntary compliance cannot be achieved, the claimant may request VETS to refer the complaint to the Attorney General. 38 U.S.C. 4323(a)(1). If the Attorney General considers the complaint meritorious, the Attorney
Section 4323 establishes requirements for several aspects of the judicial process involving USERRA complaints, which are explained in proposed sections 1002.305 through 1002.311. The United States district courts have jurisdiction over actions against a State or private employer brought by the United States, and actions against a private employer by a person. For actions brought by a person against a State, the action may be brought in a State court of competent jurisdiction. 38 U.S.C. 4323(b); proposed section 1002.305. Venue for an action between the United States and a State lies in any Federal district in which the State exercises authority or carries out functions. Venue for an action against a private employer lies in any Federal district in which the employer maintains a place of business. 38 U.S.C. 4323(c); proposed section 1002.307. Only persons claiming rights or benefits under USERRA (or the United States acting on their behalf) have standing to initiate a USERRA action. 38 U.S.C. 4323(f). Proposed section 1002.308 therefore prohibits employers or other entities (such as pension plans or unions) from initiating actions.
No fees or court costs may be imposed on the claimant. In addition, a prevailing claimant may recover his or her attorney's fee, expert witness fee, and other litigation expenses. 38 U.S.C. 4323(h); proposed section 1002.310.
No State statute of limitations applies to a USERRA proceeding. 38 U.S.C. 4323(i). Proposed section 1002.311 provides that an unreasonable delay by the claimant in asserting his or her rights that causes prejudice to the employer may result in dismissal of the claim under the doctrine of
The Department has long taken the position that no Federal statute of limitations applied to actions under USERRA. USERRA's provision that State statutes of limitations are inapplicable, together with USERRA's legislative history, show that the Congress intended that the only time-related defense that may be asserted in defending against a USERRA claim is the equitable doctrine of
With respect to remedies, the court has broad authority to protect the rights and benefits of persons covered by USERRA. The court may order the employer to comply with USERRA's provisions; compensate the claimant for lost wages and/or benefits; and pay additional, liquidated, damages equivalent to the lost wages/benefits if it determines that the employer's violation is willful. 38 U.S.C. 4323(d)(1). The legislative history establishes that “a violation shall be considered to be willful if the employer or potential employer ‘either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [provisions of this chapter].’ ” H.R. Rep. No. 103-65, at 38 (1994), quoting
These regulations impose no new legal requirements but explain existing ones, in some cases for the first time. The Department proposes that these regulations be effective 30 days after publication of the final rule, and requests comment on whether this allows adequate time for covered parties to come into full compliance. We expect that most employers are currently in full compliance. However, to the extent that these regulations clarify USERRA's requirements and require adjustments in employer policies and practices, the Department wants to allow a reasonable amount of time for the transition to take place.
This rule involves information collection, recordkeeping, or reporting requirements, as described in the chart below. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
This rule is being treated as a “significant regulatory action” within the meaning of Executive Order 12866, because of its importance to the public and the Department's priorities. Therefore, the Office of Management and Budget has reviewed the rule. However, because this rule is not “economically significant” as defined in section 3(f)(1) of EO 12866, it does not require a full economic impact analysis under section 6(a)(3)(C) of the Order. The proposed rule is not a “major rule” under the Unfunded Mandates Reform Act or Section 801 of the Small Business Regulatory Enforcement Fairness Act (SBREFA). The proposal would impose no additional costs on any private or public sector entity, and does not meet any of the criteria for a economically significant or major rule specified by the Executive Order or relevant statutes.
The Senate Committee report accompanying the passage of USERRA noted that the “[Congressional Budget Office] estimates that the enactment of [section 9 of USERRA, transitioning from the predecessor veterans' reemployment rights law to USERRA] would entail no significant cost.” (
[T]he Committee [on Veterans” Affairs] has made an evaluation of the regulatory impact which would be incurred in carrying out the Committee bill. The Committee finds that the enactment of the bill would not entail any significant new regulation of individuals or business. * * *
USERRA is the latest in a series of laws protecting veterans' employment and reemployment rights going back to the Selective Training and Service Act of 1940. USERRA's immediate predecessor was the VRRA. USERRA continued the fundamental protections of the VRRA and the case law interpreting the VRRA while clarifying that law, and VETS considers that by recodifying and clarifying longstanding statutory and case law under the VRRA, USERRA did not impose new economic burdens on employers. This proposed rule implements USERRA, and while it imposes no new costs, it may provide some economic benefits. Delays may occur when employers respond to employee claims and inquiries concerning USERRA due to confusion or ambiguity as to the correct interpretation of USERRA. Moreover, some employee claims are contested in part because of a lack of employer knowledge about the statute. The proposed rule should reduce these costs by: providing employers with accurate information necessary to respond efficiently and effectively to employee claims; potentially reducing the number of contested claims and the resulting need for administrative resolution or legal action; expediting the settlement of outstanding claims because employers and employees will have an enhanced knowledge of their rights and responsibilities under USERRA; and reducing the number of inquiries made by employers and employees to administrative agencies such as VETS and the Office of Personnel Management.
VETS also expects the proposed rule to benefit both pension- and health-plan
Based on the above analysis, the Agency concludes that the proposed rule would not impose any additional costs on employers; consequently, the proposal requires no preliminary economic analysis. Furthermore, because the proposal imposes no costs on employers, VETS certifies that it would not have a significant impact on a substantial number of small businesses; accordingly, the Agency need not prepare an initial regulatory flexibility analysis.
The Congressional Budget Office (CBO) determined that State and local governments would incur no cost resulting from passage of USERRA (
The Agency reviewed the proposed rule according to the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
The proposed rule does not have federalism implications as specified under Executive Order 13132 (64 FR 43255; August 10, 1999) because it has no 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. Section 4302 of USERRA provides that its provisions supersede any and all laws of the States as they relate to any rights and benefits provided under USERRA if such State laws reduce, limit, or eliminate in any manner any right or benefit provided by USERRA. Accordingly, the requirements implemented by the proposed rule do not alter these fundamental statutory provisions with respect to military service members' and veterans' employment and reemployment rights and benefits. Therefore, the proposed rule has no implications for the States, or for the relationship or distribution of power between the national government and the States.
The Uniformed Services Employment and Reemployment Rights Act (USERRA), Pub. L. 103-353, 108 Stat. 3150 (codified at 38 U.S.C. 4301-4333), became law on October 13, 1994, replacing the Veterans' Reemployment Rights Act (VRRA). Congress enacted USERRA, in part, to clarify the ambiguities of the VRRA and strengthen the rights of service members and veterans. USERRA's guiding principle is that a person who leaves civilian employment to perform service in the uniformed services is entitled to return to that job with the seniority, status, and rate of pay that would have accrued during the absence, provided the person meets USERRA's eligibility criteria. USERRA applies to voluntary or involuntary military service in peacetime as well as wartime. Its provisions apply to virtually all employers, regardless of size. USERRA also codifies 54 years of accumulated case law and clarifies previously existing rights and obligations. For most purposes, USERRA applies to reemployments initiated on or after December 12, 1994. Congress enacted amendments to the Act in 1996, 1998, and 2000.
This regulation is proposed pursuant to the authority in section 4331(a) of USERRA (Pub. L. 103-353, 108 Stat. 3150, 38 U.S.C. 4331(a)), and Secretary's Order 3-2004, September 10, 2004.
Labor, Pensions, Veterans.
For the reasons set out in the preamble, the Department proposes to add a new part 1002 to Chapter IX of Title 20 of the Code of Federal Regulations as follows:
Pub. L. 103-353, 108 Stat. 3150, 38 U.S.C. 4331(a); Secretary's Order 3-2004, September 10, 2004.
The regulations in this part implement the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA” or “the Act”). 38 U.S.C. 4301-4333. USERRA is a law that establishes certain rights and benefits for employees, and duties for employers. USERRA affects employment, reemployment, and retention in employment, when employees serve or have served in the uniformed services. There are five subparts to this part. Subpart A gives an introduction to the USERRA regulations. Subpart B describes USERRA's anti-discrimination and anti-retaliation provisions. Subpart C explains the steps that must be taken by a uniformed service member who wants
USERRA is the latest in a series of laws protecting veterans' employment and reemployment rights going back to the Selective Training and Service Act of 1940. USERRA's immediate predecessor was commonly referred to as the Veterans' Reemployment Rights Act (VRRA), which was enacted as section 404 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974. In enacting USERRA, Congress emphasized USERRA's continuity with the VRRA and its intention to clarify and strengthen that law. Congress also emphasized that Federal laws protecting veterans' employment and reemployment rights for the past fifty years had been successful and that the large body of case law that had developed under those statutes remained in full force and effect, to the extent it is consistent with USERRA. USERRA authorized the Department of Labor to publish regulations implementing the Act for State, local government, and private employers. USERRA also authorized the Office of Personnel Management to issue regulations implementing the Act for Federal executive agencies (other than some Federal intelligence agencies). USERRA established a separate program for employees of some Federal intelligence agencies.
USERRA became law on October 13, 1994. USERRA's reemployment provisions apply to members of the uniformed services seeking civilian reemployment on or after December 12, 1994. USERRA's anti-discrimination and anti-retaliation provisions became effective on October 13, 1994.
(a) USERRA charges the Secretary of Labor (through the Veterans' Employment and Training Service) with providing assistance to any person with respect to the employment and reemployment rights and benefits to which such person is entitled under the Act. More information about the Secretary's role in providing this assistance is contained in subpart F of this part.
(b) USERRA also authorizes the Secretary of Labor to issue regulations implementing the Act with respect to States, local governments, and private employers. The regulations in this part are issued under this authority.
(c) The Secretary of Labor delegated authority to the Assistant Secretary for Veterans' Employment and Training for administering the veterans' reemployment rights program by Secretary's Order 1-83 (February 3, 1983) and for carrying out the functions and authority vested in the Secretary pursuant to USERRA by memorandum of April 22, 2002 (67 FR 31827).
(a)
(b)
(c)
(d)(1)
(i) A person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities;
(ii) The Federal Government;
(iii) A State;
(iv) Any successor in interest to a person, institution, organization, or other entity referred to in this definition; and,
(v) A person, institution, organization, or other entity that has denied initial employment in violation of 38 U.S.C. 4311, USERRA's anti-discrimination and anti-retaliation provisions.
(2) In the case of a National Guard technician employed under 32 U.S.C. 709, the term “employer” means the adjutant general of the State in which the technician is employed.
(3) An employee pension benefit plan as described in section 3(2) of the Employee Retirement Income Security Act of 1974 (ERISA)(29 U.S.C. 1002(2)) is considered an employer for an individual that it does not actually employ only with respect to the obligation to provide pension benefits.
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(1) The nature and cost of the action needed under USERRA and the regulations in this part;
(2) The overall financial resources of the facility or facilities involved in the provision of the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;
(3) The overall financial resources of the employer; the overall size of the business of an employer with respect to the number of its employees; the number, type, and location of its facilities; and,
(4) The type of operation or operations of the employer, including the composition, structure, and functions of the work force of such employer; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.
(n)
USERRA's definition of “service in the uniformed services” covers all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war. Although most often understood as applying to National Guard and reserve military personnel, USERRA also applies to persons serving in the active components of the Armed Forces. However, USERRA's reemployment provisions vary according to the length of service in the uniformed services.
(a) USERRA establishes a floor, not a ceiling, for the employment and reemployment rights and benefits of those it protects. In other words, an employer may provide greater rights and benefits than USERRA requires, but no employer can refuse to provide any right or benefit guaranteed by USERRA.
(b) USERRA supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by USERRA, including the establishment of additional prerequisites to the exercise of any USERRA right or the receipt of any USERRA benefit. For example, an employment contract that determines seniority based only on actual days of work in the place of employment would be superseded by USERRA, which requires that seniority credit be given for periods of absence from work due to service in the uniformed services.
(c) USERRA does not supersede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that establishes an employment right or benefit that is more beneficial than, or is in addition to, a right or benefit provided under the Act. For example, although USERRA does not require an employer to pay an employee for time away from work performing service, an employer policy, plan, or practice that provides such a benefit is permissible under USERRA.
(d) If an employer provides a benefit that exceeds USERRA's requirements in one area, it cannot reduce or limit other rights or benefits provided by USERRA. For example, even though USERRA does not require it, an employer may provide a fixed number of days of paid military leave per year to employees who are members of the National Guard or Reserve. The fact that it provides such a benefit, however, does not permit an employer to refuse to provide an unpaid leave of absence to an employee to perform service in the uniformed services in excess of the number of days of paid military leave.
An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to you on the basis of your membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.
An employer must not retaliate against you by taking any adverse employment action against you because you have taken an action to enforce a protection afforded any person under USERRA; testified or otherwise made a statement in or in connection with a proceeding under USERRA; assisted or participated in a USERRA investigation: or, exercised a right provided for by USERRA.
Yes. Employers are prohibited from taking actions against you for any of the activities protected by the Act, whether or not you have performed service in the uniformed services.
The prohibitions against discrimination and retaliation apply to all covered employers (including hiring halls and potential employers, see §§ 1002.36 and 1002.38) and employment positions, including those that are for a brief, non-recurrent period, and for which there is no reasonable expectation that the employment position will continue indefinitely or for a significant period. However, USERRA's reemployment rights and
You have the burden of proving that activity protected by USERRA was one of the reasons that your employer took action against you, in order to establish that the action was discrimination or retaliation in violation of USERRA. If you succeed in proving this point, your employer can prevail by proving that he or she would have taken the action anyway, unless you can prove that but for your service the employer would not have taken the action.
(a) In order to prove that your employer discriminated or retaliated against you, first you must show that the employer's action against you was motivated by either:
(1) Membership or application for membership in a uniformed service;
(2) Performance of service, application for service, or obligation for service in a uniformed service;
(3) Action taken to enforce a protection afforded any person under USERRA;
(4) Testimony or statement made in or in connection with a USERRA proceeding;
(5) Assistance or participation in a USERRA investigation; or,
(6) Exercise of a right provided for by USERRA.
(b) If you prove that the employer's action against you was based on one of the prohibited motives listed in paragraph (a) of this section, your employer may prevail by showing that the action would have been taken anyway. In that event, you can prevail only if you can show that the employer would not have taken the action against you but for your protected activity.
(a) In general, if you have been absent from a position of civilian employment by reason of service in the uniformed services, you will be eligible for reemployment under USERRA if you meet the following criteria:
(1) Your employer had advance notice of your service;
(2) You have five years or less of cumulative service with respect to your position of employment;
(3) You timely return to work or apply for reemployment; and,
(4) You have not been separated from service with a disqualifying discharge or under other than honorable conditions.
(b) These general eligibility requirements have important qualifications and exceptions, which are described in detail in §§ 1002.73 through 1002.138. If you meet these eligibility criteria, then you are eligible for reemployment, unless your employer can establish that one of the defenses described in § 1002.139 apply. The reemployment position that you are entitled to if you meet USERRA's eligibility criteria is described in §§ 1002.191 through 1002.199.
No. To be eligible for reemployment it is not necessary for you to establish that your employer discriminated against you because of your military service.
(a) USERRA applies to all public and private employers in the United States, regardless of size. For example, an employer with only one employee is covered for purposes of the Act.
(b) USERRA applies to foreign employers doing business in the United States. A foreign employer that has a physical location or branch in the United States (including U.S. territories and possessions) must comply with USERRA for any of its employees who are employed in the United States.
(c) An American company operating either directly or through an entity under its control in a foreign country must also comply with USERRA for all its foreign operations, unless compliance would violate the law of the foreign country in which the workplace is located.
USERRA's definition of “employer” includes a successor in interest. In general, an employer is a successor in interest where there is a substantial continuity in operations, facilities, and workforce from the former employer. The determination whether an employer is a successor in interest must be made on a case-by-case basis using a multi-factor test that considers the following:
(a) Whether there has been a substantial continuity of business operations from the former to the current employer;
(b) Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production;
(c) Whether there has been a substantial continuity of employees;
(d) Whether there is a similarity of jobs and working conditions;
(e) Whether there is a similarity of supervisors or managers; and,
(f) Whether there is a similarity of products or services.
Yes. In order to be a successor in interest, it is not necessary for an employer to have notice of a potential reemployment claim at the time of merger, acquisition, or other form of succession.
Yes. Under USERRA, an employer includes not only the person or entity that pays your salary or wages, but also includes a person or entity that has control over your employment opportunities, including a person or entity to whom an employer has delegated the performance of employment-related responsibilities. For example, if you are a security guard hired by a security company and you are assigned to a work site, you may report both to the security company and to the site owner. In such an instance, both employers share responsibility for compliance with USERRA. If the security company declines to assign you to a job because of a uniformed service obligation (for example, your National Guard duties), then the security company could be in violation of the reemployment requirements and the anti-discrimination provisions of USERRA. Similarly, if the employer at the work site causes your removal from the job position because of your uniformed service obligations, then the work site employer could be in violation of the reemployment requirements and the anti-discrimination provisions of USERRA.
Yes. If you are a longshoreman, stagehand, construction worker, or you work in certain other industries, you may frequently work for many different employers. A hiring hall operated by a union or an employer association typically assigns you to your jobs. In
Yes. States and their political subdivisions, such as counties, parishes, cities, towns, villages, and school districts, are considered employers under USERRA. The District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and territories of the United States, are also considered employers under the Act.
Yes. The Act's definition of employer includes a person, institution, organization, or other entity that has denied you initial employment in violation of USERRA's anti-discrimination provisions. An employer need not actually employ you to be your “employer” under the Act, if it has denied you initial employment on the basis of your membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. Similarly, the employer would be liable if it denied you initial employment on the basis of your action taken to enforce a protection afforded to any person under USERRA, your testimony or statement in connection with any USERRA proceeding, your assistance or other participation in a USERRA investigation, or your exercise of any other right provided by the Act. For example, if you have been denied initial employment because of your obligations as a member of the National Guard or Reserves, the company or entity denying you employment is an employer for purposes of USERRA. Similarly, if an entity withdraws an offer of employment to you because you are called upon to fulfill an obligation in the uniformed services, the entity withdrawing your offer of employment is an employer for purposes of USERRA.
Your rights under USERRA are not diminished because you hold a temporary, part-time, probationary, or seasonal employment position. However, an employer is not required to reemploy you if the employment you left to serve in the uniformed services was for a brief, non-recurrent period and there is no reasonable expectation that your employment would have continued indefinitely or for a significant period. The employer bears the burden of proving this affirmative defense.
(a) If you are laid off with recall rights, on strike, or on a leave of absence, you are an employee for purposes of USERRA. If you are on layoff and begin service in the uniformed services, or you are laid off while performing service, you may be entitled to reemployment on return if the employer would have recalled you to employment during the period of service. Similar principles apply if you are on strike or on a leave of absence from work when you begin a period of service in the uniformed services.
(b) If you are sent a recall notice during your period of service in the uniformed services and you cannot resume the position of employment because of the service, you still remain an employee for purposes of the Act. Therefore, if you are otherwise eligible, you are entitled to reemployment following the conclusion of your period of service even if you did not respond to the recall notice.
(c) If you are laid off before or during your service in the uniformed services, and your employer would not have recalled you during your period of service, you are not entitled to reemployment following your period of service simply because you are a covered employee. Your reemployment rights under USERRA cannot put you in a better position than if you had remained in your civilian employment position.
Yes. USERRA applies to all employees. There is no exclusion for executive, managerial, or professional employees.
(a) No. USERRA does not provide protections for you if you are an independent contractor.
(b) In deciding whether you are an independent contractor, the following factors need to be considered:
(1) The extent of the employer's right to control the manner in which your work is to be performed;
(2) Your opportunity for profit or loss that depends upon your managerial skill;
(3) Your investment in equipment or materials required for your tasks, or your employment of helpers;
(4) Whether the service you render requires a special skill;
(5) The degree of permanence of your working relationship; and,
(6) Whether the service you render is an integral part of the employer's business.
(c) No single one of these factors is controlling, but all are relevant to the determination whether you are an employee or an independent contractor.
Yes. USERRA's definition of “service in the uniformed services” includes a period for which you are absent from a position of employment for the purpose of an examination to determine your fitness to perform duty in the uniformed services. Military fitness examinations can address more than physical or medical fitness, and include evaluations for mental, educational, and other types of fitness. Any examination to determine your fitness for service is covered, whether it is an initial or recurring examination. For example, a periodic medical examination required of a Reserve component member to determine fitness for continued service is covered.
(a) USERRA's definition of “service in the uniformed services” includes a period for which you are absent from employment for the purpose of performing authorized funeral honors duty under 10 U.S.C. 12503 (members of Reserve ordered to perform funeral honors duty) or 32 U.S.C. 115 (Member of Air or Army National Guard ordered to perform funeral honors duty).
(b) Funeral honors duty performed by persons who are not members of the uniformed services, such as members of
Under a provision of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C. 300hh 11(e)(3), “service in the uniformed services” includes service you perform as an intermittent disaster-response appointee upon activation of the National Disaster Medical System or when you participate in an authorized training program, even if you are not a member of the uniformed services.
The National Guard has a dual status. It is a Reserve component of the Army, or, in the case of the Air National Guard, of the Air Force. Simultaneously, it is a State military force subject to call-up by the State Governor for duty not subject to Federal control, such as emergency duty in cases of floods or riots. National Guard members may perform service under either Federal or State authority, but only your Federal National Guard service is covered by USERRA.
(a) Your National Guard service under Federal authority is protected by USERRA. Service under Federal authority includes active duty you perform under Title 10 of the United States Code. Service under Federal authority also includes duty under Title 32 of the United States Code, such as active duty for training, inactive duty training, or full-time National Guard duty.
(b) Your National Guard service under authority of State law is not protected by USERRA. However, many States have laws protecting the civilian job rights of National Guard members who serve under State orders. Enforcement of those State laws is not covered by USERRA or the regulations in this part.
Yes. Your service in the commissioned corps of the Public Health Service (PHS) is “service in the uniformed services” under USERRA.
Yes. In time of war or national emergency the President has authority to designate any category of persons as a “uniformed service” for purposes of USERRA. If the President exercises this authority, your service as a member of that category of persons would be “service in the uniformed services” under USERRA.
Yes. Your service as a cadet or midshipman at a service academy is considered uniformed service for purposes of USERRA. There are four service academies: The United States Military Academy (West Point, New York), the United States Naval Academy (Annapolis, Maryland), the United States Air Force Academy (Colorado Springs, Colorado), and the United States Coast Guard Academy (New London, Connecticut).
No. Your membership in the Reserve Officers Training Corps (ROTC) or the Junior ROTC is not “service in the uniformed services.” However, many Reserve and National Guard units use a college ROTC program as a means of qualifying enlisted personnel for commissioned officer status. In these cases, if you participate in ROTC training sessions as a member of a Reserve or National Guard unit performing active or inactive duty training, that training is considered “service in the uniformed services.”
No. Although the Commissioned Corps of the National Oceanic and Atmospheric Administration (NOAA) is a “uniformed service” for some purposes, it is not included in USERRA's definition of this term. Service in the Civil Air Patrol and the Coast Guard Auxiliary similarly is not considered “service in the uniformed services” for purposes of USERRA. Consequently, service performed in the Commissioned Corps of the National Oceanic and Atmospheric Administration (NOAA), the Civil Air Patrol, and the Coast Guard Auxiliary is not protected by USERRA.
No. If your absence from a position of employment is necessitated by your service in the uniformed services, and you otherwise meet the Act's eligibility requirements, you have reemployment rights under USERRA, even if you use your absence for other purposes as well. You are not required to leave the employment position for the sole purpose of performing service in the uniformed services. For example, if you are required to report to an out of State location for military training and spend your off-duty time during that assignment moonlighting as a security guard or visiting relatives who live in that State, you will not lose your reemployment rights simply because you used some of the time you were required to be absent from your job to do something other than attend the military training. Also, if you receive advance notification of a mobilization order, and leave your employment position in order to prepare for duty, but the mobilization is cancelled, you will not lose your reemployment rights.
No. At a minimum, you must have enough time after leaving your employment position to travel safely to the site where your service in the uniformed services is to be performed, and arrive fit to perform the service. Depending on the specific circumstances, additional time to rest, or to arrange your affairs and report to duty may be necessitated by reason of service in the uniformed services. The following examples help to explain the issue of the period of time between leaving civilian employment and the beginning of service in the uniformed services:
(a) If you perform a full overnight shift for your civilian employer and travel directly from the work site to perform a full day of military service, you would not be considered fit to perform the military service. An absence from that work shift is necessitated so that you can report for military service fit for duty.
(b) If you are ordered to perform an extended period of service in the uniformed services, you will require a reasonable period of time off from your civilian job to put your personal affairs
(c) If you leave a position of employment in order to enlist or otherwise perform service in the uniformed services and, through no fault of your own, the beginning date of the service is delayed, this delay does not terminate your reemployment rights.
(a) Yes. You, or an appropriate officer of the uniformed service in which your service is to be performed, must notify your employer that you intend to leave your employment position to perform service in the uniformed services, with certain exceptions described below.
(b) The Department of Defense USERRA regulations at 32 CFR 104.3 provide that an “appropriate officer” can give notice on your behalf. An “appropriate officer” is a commissioned, warrant, or non-commissioned officer authorized to give such notice by the military service concerned.
(c) Your notice to your employer may be either verbal or written. The notice may be informal and does not need to follow any particular format. Although USERRA does not specify how far in advance your notice must be given, you should provide the notice as far in advance as is reasonable under the circumstances.
You are required to give advance notice of pending service unless giving such notice is prevented by military necessity, or is otherwise impossible or unreasonable under all the circumstances.
(a) Only a designated military authority can make a determination of “military necessity,” and such a determination is not subject to judicial review. Guidelines for defining “military necessity” appear in regulations issued by the Department of Defense at 32 CFR 104.3. In general, these regulations cover situations where a mission, operation, exercise or requirement is classified, or could be compromised or otherwise adversely affected by public knowledge.
(b) It may be impossible or unreasonable for you to give advance notice under certain circumstances. Such circumstances may include the unavailability of your employer or the employer's representative, or a requirement that you report for military service in an extremely short period of time.
No. You are not required to ask for or get your employer's permission to leave to perform service in the uniformed services. You are only required to give your employer notice of pending service.
No. When you leave your employment position to begin a period of service you are not required to tell your civilian employer that you intend to seek reemployment after completing your military service. Even if you tell your employer that you do not intend to seek reemployment after completing the military service, you do not forfeit your right to reemployment. You are not required to decide in advance of leaving your civilian employment position whether you will seek reemployment after completing military service.
Yes. In general, you may perform service in the uniformed services for a cumulative period of up to five (5) years and retain reemployment rights with your employer. The exceptions to this rule are described below.
No. The five-year period includes only the time you spend actually performing service in the uniformed services. A period of absence from employment before or after your performance of service in the uniformed services does not count against the five-year limit. For example, after you complete a period of service in the uniformed services, you are provided a certain amount of time, depending upon your length of service, to report back to work or submit an application for reemployment. The period between the completion of the period of service and the time you have to report back to work or seek reemployment does not count against the five-year limit.
No. You are entitled to a leave of absence for uniformed service for up to five years with each employer for whom you work. When you take a position with a new employer, the five-year period begins again regardless of how much service you performed while you worked in any previous employment relationship.
Yes. USERRA provides reemployment rights to which you may become entitled beginning on or after December 12, 1994, but any uniformed service that you performed before December 12, 1994, that was counted against the service limitations of the previous law (the Veterans Reemployment Rights Act), also counts against USERRA's five-year limit.
(a) USERRA creates the following exceptions to the five-year limit on service in the uniformed services:
(1) Service that is required beyond five years to complete your initial period of obligated service. Some military specialties require you to serve more than five years because of the amount of time or expense involved in training. If you work in one of those specialties you have reemployment rights when your initial period of obligated service is completed;
(2) If you were unable to obtain orders releasing you from service in the uniformed services before the expiration of the five-year period, and the inability was not your fault;
(3)(i) Service that you performed to fulfill periodic National Guard and Reserve training requirements as prescribed by 10 U.S.C. 10147 and 32 U.S.C. 502(a) and 503; and,
(ii) Service that you performed to fulfill additional training requirements determined and certified by a proper military authority as necessary for your professional development, or to complete your skill training or retraining;
(4) Service that you performed in a uniformed service if you were ordered to or retained on active duty under:
(i) 10 U.S.C. 688 (involuntary active duty by a military retiree);
(ii) 10 U.S.C. 12301(a) (involuntary active duty in wartime);
(iii) 10 U.S.C. 12301(g) (retention on active duty while in captive status);
(iv) 10 U.S.C. 12302 (involuntary active duty during a national emergency for up to 24 months);
(v) 10 U.S.C. 12304 (involuntary active duty for an operational mission for up to 270 days);
(vi) 10 U.S.C. 12305 (involuntary retention on active duty of a critical person during time of crisis or other specific conditions);
(vii) 14 U.S.C. 331 (involuntary active duty by retired Coast Guard officer);
(viii) 14 U.S.C. 332 (voluntary active duty by retired Coast Guard officer);
(ix) 14 U.S.C. 359 (involuntary active duty by retired Coast Guard enlisted member);
(x) 14 U.S.C. 360 (voluntary active duty by retired Coast Guard enlisted member);
(xi) 14 U.S.C. 367 (involuntary retention of Coast Guard enlisted member on active duty); and
(xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard Reserve member for natural or man-made disasters).
(5) Service that you performed in a uniformed service if you were ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress, as determined by a proper military authority;
(6) Service that you performed in a uniformed service if you were ordered to active duty (other than for training) in support of an operational mission for which personnel have been ordered to active duty under 10 U.S.C. 12304, as determined by a proper military authority;
(7) Service that you performed in a uniformed service if you were ordered to active duty in support of a critical mission or requirement of the uniformed services as determined by a proper military authority; and,
(8) Service that you performed as a member of the National Guard if you were called to respond to an invasion, danger of invasion, rebellion, danger of rebellion, insurrection, or the inability of the President with regular forces to execute the laws of the United States.
(b) Service that you performed to mitigate economic harm where your employer is in violation of its employment or reemployment obligations to you.
No. You are not required to accommodate your employer's interests or concerns regarding the timing, frequency, or duration of your uniformed service. Your employer cannot refuse to reemploy you because it believes that the timing, frequency or duration of your service is unreasonable. However, your employer is permitted to bring its concerns over the timing, frequency, or duration of your service to the attention of the appropriate military authority. Regulations issued by the Department of Defense at 32 CFR 104.4 direct military authorities to provide assistance to your employer in addressing these types of employment issues. The military authorities are required to consider requests from employers of National Guard and Reserve members to adjust your scheduled absence from civilian employment to perform service.
Yes. When you complete your service in the uniformed services, you must notify your pre-service employer of your intent to return to your employment position by either reporting to work or submitting a timely application for reemployment. Whether you are required to report to work or submit a timely application for reemployment depends upon the length of your service, as follows:
(a)
(b)
(c)
Yes. If you are hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, your performance of service, you must report to or submit an application for reemployment to your employer at the end of the period necessary for you to recover from the illness or injury. This period may not exceed two years from the date of the completion of your service, except that it must be extended by the minimum time necessary to accommodate circumstances beyond your control that make reporting within the period impossible or unreasonable.
(a) If you fail to timely report for or apply for reemployment you do not automatically forfeit your entitlement to USERRA's reemployment and other rights and benefits. Rather, you become subject to the conduct rules, established policy, and general practices of your employer pertaining to your absence from scheduled work.
(b) If reporting or submitting an employment application to your employer is impossible or unreasonable through no fault of your own, you may report to your employer as soon as possible (in the case of a period of service less than 31 days) or submit an application for reemployment to your employer by the next full calendar day after it becomes possible to do so (in the case of a period of service from 31 to 180 days), and you will be considered to have timely reported or applied for reemployment.
Your application for reemployment need not follow any particular format. You may apply orally or in writing. Your application should indicate that you are a former employee returning from service in the uniformed services and that you seek reemployment with your pre-service employer. You are permitted but not required to identify a particular reemployment position in which you are interested.
Your application must be submitted to your pre-service employer or to an agent or representative of your employer who has apparent responsibility for receiving employment applications. Depending upon the circumstances, such a person could be a personnel or human resources officer, or a first-line supervisor. If there has been a change in ownership of your employer, your application should be submitted to the employer's successor-in-interest.
No, you have reemployment rights with your pre-service employer provided that you make a timely reemployment application to that employer. You may seek or obtain employment with an employer other than your pre-service employer during the period of time within which your reemployment application must be made, without giving up your reemployment rights with your pre-service employer.
Yes, if the period of service exceeded 30 days. If you submit an application for reemployment after a period of service of more than 30 days you must, upon the request of your employer, provide documentation to establish that:
(a) Your reemployment application is timely;
(b) You have not exceeded the five-year limit on the duration of service (subject to the exceptions listed at § 1002.103); and,
(c) Your separation or dismissal from service was not disqualifying.
Yes. Your employer is not permitted to delay or deny your reemployment by demanding documentation that does not exist or is not readily available. You are not liable for administrative delays in the issuance of military documentation. If you are reemployed after an absence from employment for more than 90 days your employer may require that you submit the documentation establishing your entitlement to reemployment before treating you as not having had a break in service for pension purposes. If your documentation is received after reemployment and it shows that you are not entitled to reemployment, your employer may terminate your employment and any rights or benefits that you may have been granted.
(a) Documents that satisfy the requirements of USERRA include the following:
(1) DD (Department of Defense) 214 Certificate of Release or Discharge from Active Duty;
(2) Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service;
(3) Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority;
(4) Certificate of completion from military training school;
(5) Discharge certificate showing character of service; and,
(6) Copy of extracts from payroll documents showing periods of service.
(b) The types of documents that are necessary to establish your eligibility or reemployment will vary from case to case. Not all of these documents are available or necessary in every instance to establish your reemployment eligibility.
USERRA does not require any particular form of discharge or separation from service. However, even if you are otherwise eligible for reemployment you will be disqualified if your characterization of service falls within one of four categories. USERRA requires that you not have received one of these types of discharge.
Your reemployment rights are terminated if you are:
(a) Separated from uniformed service with a dishonorable or bad conduct discharge;
(b) Separated from uniformed service under other than honorable conditions, as characterized by regulations of the uniformed service;
(c) A commissioned officer dismissed as permitted under 10 U.S.C. 1161(a) by sentence of a general court-martial; in commutation of a sentence of a general court-martial; or, in time of war, by order of the President; or,
(d) A commissioned officer dropped from the rolls under 10 U.S.C. 1161(b) due to absence without authority for at least three months; separation by reason of a sentence to confinement adjudged by a court-martial; or, a sentence to confinement in a Federal or State penitentiary or correctional institution.
The branch of service in which you perform your tour of duty determines your characterization of service.
Yes. A military review board has the authority to prospectively or retroactively upgrade your disqualifying discharge or release. A retroactive upgrade would restore your reemployment rights providing you otherwise meet the Act's eligibility criteria.
No. A retroactive upgrade allows you to obtain reinstatement with your former employer, provided you otherwise meet the Act's eligibility criteria. Back pay and other benefits such as pension plan credits attributable to the time period between your discharge and the retroactive upgrade are not required to be restored by your employer in this situation.
(a) Even if you are otherwise eligible for reemployment benefits, your employer is not required to reemploy you if it establishes that its circumstances have so changed as to make your reemployment impossible or unreasonable. For example, an employer may be excused from reemploying you where there has been an intervening reduction in force that would have included you. Your employer may not, however, refuse to reemploy you on the basis that an employee was hired to fill your position during your absence, even if your reemployment might require the termination of that replacement employee;
(b) Even if you are otherwise eligible for reemployment benefits, your employer is not required to reemploy you if it establishes that assisting you in becoming qualified for reemployment would impose an undue hardship, as defined in § 1002.5(l) and discussed in § 1002.198, on the employer; or,
(c) Even if you are otherwise eligible for reemployment benefits, your employer is not required to reemploy you if it establishes that the employment you left in order to perform service in the uniformed services was for a brief, non-recurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period.
During your period of service in the uniformed services, you are deemed to be on furlough or leave of absence from your civilian employer. In this status you are entitled to the non-seniority rights and benefits generally provided by the employer to other employees with similar seniority, status, and pay that are on furlough or leave of absence. Your entitlement to these non-seniority rights and benefits is not dependent on how your employer characterizes your status during a period of service. For example, if your employer characterizes you as “terminated” during your period of military service, this characterization cannot be used to avoid USERRA's requirement that you be deemed on furlough or leave of absence, and therefore entitled to the non-seniority rights and benefits generally provided to employees on furlough or leave of absence.
(a) The non-seniority rights and benefits to which you are entitled during your service are those that your employer provides to similarly situated employees by an employment contract, agreement, policy, practice, or plan in effect at your workplace. These rights and benefits include those in effect at the beginning of your employment and those established after your employment began. They also include those rights and benefits that become effective during your period of service and that are provided to similarly situated employees on furlough or leave of absence.
(b) If the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, you must be given the most favorable treatment accorded to any comparable form of leave when you perform service in the uniformed services.
Yes. If your employer provides additional benefits such as full or partial pay when you perform service it is not excused from providing other rights and benefits to which you are entitled under the Act.
If your employment is interrupted by a period of service in the uniformed services and you knowingly provide written notice of intent not to return to your position of employment after service in the uniformed services you are not entitled to those non-seniority rights and benefits. Your written notice does not waive your entitlement to any other rights to which you are entitled under the Act, including your right to reemployment after your service.
(a) If your employment is interrupted by a period of service you must be permitted upon request to use any accrued vacation, annual, or similar leave with pay during the period of service, in order to continue your civilian pay. However, you are not entitled to use sick leave that you accrued with your civilian employer during a period of service in the uniformed services. Sick leave is not comparable to annual or vacation leave; it is generally intended to provide income when you or a family member is ill and you are unable to work.
(b) Your employer may not require you to use accrued vacation, annual, or similar leave during a period of service in the uniformed services.
(a) USERRA defines a health plan to include an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or arrangement under which your health services are provided or the expenses of those services are paid.
(b) USERRA covers group health plans as defined in the Employee Retirement Income Security Act of 1974 (ERISA) at 29 U.S.C. 1191b(a). USERRA applies to group health plans that are subject to ERISA, and plans that are not subject to ERISA, such as those sponsored by State or local governments or religious organizations for their employees.
(c) USERRA covers multiemployer plans maintained pursuant to one or more collective bargaining agreements between employers and employee organizations. USERRA applies to multiemployer plans as they are defined in ERISA at 29 U.S.C. 1002(37). USERRA contains provisions that apply specifically to multiemployer plans in certain situations.
If you have coverage under a health plan in connection with your employment, the plan must permit you to elect to continue the coverage for a certain period of time as described below:
(a) When you are performing service in the uniformed services you are
(1) The 18-month period beginning on the date on which your absence for the purpose of performing service begins; or,
(2) The period beginning on the date on which your absence for the purpose of performing service begins, and ending on the date on which you fail to return from your service or apply for a position of employment as provided under §§ 1002.115 through 1002.123.
(b) USERRA does not require your employer to establish a health plan if there is no health plan coverage in connection with your employment, or, where there is a plan, to provide any particular type of coverage.
(c) USERRA does not require your employer to permit you to initiate new health plan coverage at the beginning of a period of service if you did not previously have such coverage.
USERRA does not specify requirements for electing continuing coverage. Health plan administrators may develop reasonable requirements addressing how continuing coverage may be elected, consistent with the terms of the plan and the Act's exceptions to the requirement that you give advance notice of your service in the uniformed services. For example, you cannot be precluded from electing continuing health plan coverage under circumstances where it is impossible or unreasonable for you to make a timely election of coverage.
(a) If you perform service in the military for fewer than 31 days, you cannot be required to pay more than the regular employee share, if any, for health plan coverage.
(b) If you perform service for 31 or more days you may be required to pay no more than 102% of the full premium under the plan, which represents your employer's share plus your share, plus 2% for administrative costs.
(c) USERRA does not specify requirements for methods of paying for continuing coverage. Health plan administrators may develop reasonable procedures for payment, consistent with the terms of the plan.
(a) If health plan coverage for you or a dependent was terminated by reason of your service in the uniformed services, that coverage must be reinstated upon reemployment. An exclusion or waiting period may not be imposed in connection with the reinstatement of your coverage upon reemployment, if an exclusion or waiting period would not have been imposed had your coverage not been terminated by reason of such service.
(b) Reinstatement procedures that apply to multiemployer plans are discussed in § 1002.169.
(c) USERRA permits a health plan to impose an exclusion or waiting period as to illnesses or injuries determined by the Secretary of Veterans Affairs to have been incurred in, or aggravated during, performance of service in the uniformed services. The determination that your illness or injury was incurred in, or aggravated during, the performance of service may only be made by the Secretary of Veterans Affairs or his or her representative. Other coverage, for injuries or illnesses that are not service-related (or for your dependents, if you have dependent coverage), must be reinstated.
USERRA requires your employer to reinstate your health plan coverage upon request at reemployment. USERRA permits but does not require your employer to allow you to delay reinstatement of health plan coverage until a date that is later than the date of your reemployment.
Responsibility under a multiemployer plan for employer contributions and benefits in connection with continuing coverage that you elect must be allocated either as the plan sponsor provides, or, if the sponsor does not provide, to your last employer before your service. If your last employer is no longer functional, liability for continuing coverage is allocated to the health plan.
Your employer must promptly reemploy you when you return from a period of service if you meet the Act's eligibility criteria as described in subpart C of this part.
“Prompt reemployment” means as soon as practicable under the circumstances of your case. Absent unusual circumstances, your reemployment must occur within two weeks of your application for reemployment. For example, prompt reinstatement after your weekend National Guard duty generally means the next regularly scheduled working day. On the other hand, prompt reinstatement following several years of active duty may require more time, because your employer may have to reassign or give notice to another employee who occupied your position.
As a general rule, you are entitled to reemployment in the job position that you would have attained with reasonable certainty if not for your absence due to military service. This position is known as the escalator position. The principle behind the escalator position is that if not for your period of military service, you could have been promoted (or, alternatively, demoted, transferred, or laid off) due to intervening events. The escalator principle requires that you be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites, that you would have attained if not for the period of service. Depending upon the specific circumstances, your employer may have the option, or be required, to reemploy you in a position other than the escalator position.
In all cases, the starting point for determining your proper reemployment position is the escalator position, which is the job position that you would have attained if your continuous employment had not been interrupted due to military service. Once this position is determined, your employer may have to consider several factors before
Yes. Your reemployment position includes the seniority, status, and rate of pay that you would ordinarily have attained in that position given your job history, including your prospects for future earnings and advancement. Your employer must determine your seniority rights, status, and rate of pay as though you had been continuously employed during the period of service. The seniority rights, status, and pay of an employment position include those established (or changed) by a collective bargaining agreement, employer policy, or employment practice. The sources of seniority rights, status, and pay include agreements, policies, and practices in effect at the beginning of your service, and any changes that may have occurred during your period of service. In particular, your status in the reemployment position could include opportunities for advancement, general working conditions, job location, shift assignment, rank, responsibility, and geographical location. If an opportunity for promotion, or eligibility for promotion, that you missed during service is based on a skills test or examination, then your employer should give you a reasonable amount of time to adjust to your employment position and then give you the skills test or examination. If you are successful on the makeup exam and, based on the results of that exam, there is a reasonable certainty that you would have been promoted, or made eligible for promotion, during the time that you served in the military, then your promotion or eligibility for promotion must be made effective as of the date it would have occurred had your employment not been interrupted by military service.
Yes. The Act does not prohibit lawful adverse job consequences that result from your restoration on the seniority ladder. Depending on your circumstances, your seniority rank may cause you to be reemployed in a higher or lower position, laid off, or even terminated. For example, if your seniority would have resulted in your being laid off during the period of service, and the layoff continued after the date of your reemployment, your reemployment would reinstate you to layoff status. Similarly, the status of your reemployment position requires the employer to assess what would have happened to such factors as your opportunities for advancement, working conditions, job location, shift assignment, rank, responsibility, and geographical location, if you had remained continuously employed. Your reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement, depending upon the application of the escalator principle.
Once your escalator position is determined, other factors may allow, or require, your employer to reemploy you in a position other than the escalator position. These factors, which are explained in §§ 1002.196 through 1002.199 below, are:
(a) The length of your most recent period of military service;
(b) Your qualifications; and,
(c) Whether you have a disability incurred or aggravated during your military service.
Following a period of service in the uniformed services of less than 91 days, you must be reemployed according to the following priority:
(a) You must be reemployed in the escalator position. You must be qualified to perform the duties of this position. Your employer must make reasonable efforts to help you become qualified to perform the duties of this position.
(b) If you are not qualified to perform the duties of the escalator position after reasonable efforts by your employer, you must be reemployed in the position in which you were employed on the date that your period of service began. You must be qualified to perform the duties of this position. Your employer must make reasonable efforts to help you become qualified to perform the duties of this position.
(c) If you are not qualified to perform the duties of the escalator position or the pre-service position, after reasonable efforts by your employer, you must be reemployed in any other position that is the nearest approximation first to the escalator position and then to the pre-service position. You must be qualified to perform the duties of this position. The employer must make reasonable efforts to help you become qualified to perform the duties of this position.
Following a period of service of more than 90 days, you must be reemployed according to the following priority:
(a) You must be reemployed in the escalator position or a position of like seniority, status, and pay. You must be qualified to perform the duties of this position. Your employer must make reasonable efforts to help you become qualified to perform the duties of this position.
(b) If you are not qualified to perform the duties of the escalator position or a like position after reasonable efforts by your employer, you must be reemployed in the position in which you were employed on the date that your period of service began or in a position of like seniority, status, and pay. You must be qualified to perform the duties of this position. Your employer must make reasonable efforts to help you become qualified to perform the duties of this position.
(c) If you are not qualified to perform the duties of the escalator position, the pre-service position, or a like position, after reasonable efforts by your employer, you must be reemployed in any other position that is the nearest approximation first to the escalator position and then to the pre-service position. You must be qualified to perform the duties of this position. Your employer must make reasonable efforts to help you become qualified to perform the duties of this position.
You must be qualified for your reemployment position. Your employer must make reasonable efforts to help you become qualified to perform the duties of this position. Your employer is not required to reemploy you on your return from service if you cannot, after reasonable efforts by your employer, qualify for the appropriate reemployment position.
(a) (1) “Qualified” means that you have the ability to perform the essential tasks of the position. Your inability to perform one or more non-essential tasks of a position does not make you unqualified.
(2) Whether a task is essential depends on several factors, including:
(i) Whether you regularly perform the task in the job position. It is not necessary or sufficient that the task is labeled “essential,” or is part of your job description. If you do not regularly perform the task in your position, it is generally not essential;
(ii) Whether your position exists solely to perform the task;
(iii) Whether a significant portion of your workday or workweek is spent performing the task;
(iv) Whether the result of your failing to correctly perform the task would create a dangerous workplace situation or cause a catastrophe;
(v) Whether the task is highly specialized, and you were hired specifically to perform the task; and,
(vi) Whether your failure to perform the task would place your employer in violation of a law or regulation.
(b) Only after your employer makes reasonable efforts, as defined in § 1002.5(g) and § 1002.5(l), may it determine that you are not qualified for the reemployment position. These reasonable efforts must be made at no cost to you.
If two or more persons are entitled to reemployment in the same position and more than one person has reported or applied for employment in that position, the employee who first left the position for military service has the first priority on reemployment in that position. The remaining employee (or employees) is entitled to be reemployed in a position similar to that in which the person would have been reemployed according to the rules that normally determine a person's reemployment position, as set out in §§ 1002.196 and 1002.197.
You are entitled to the seniority and seniority-based rights and benefits that you had on the date your service began, plus any seniority and seniority-based rights and benefits that you would have attained if you had remained continuously employed during your period of service. In determining your entitlement to seniority and seniority-based rights and benefits, your period of uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute. For example, a reemployed service member would be eligible for leave under the Family and Medical Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number of months and the number of hours of work for which the service member was employed by the civilian employer, together with the number of months and the number of hours of work for which the service member would have been employed by the civilian employer during the period of military service, meet FMLA's eligibility requirements.
No. USERRA does not require your employer to adopt a formal seniority system. USERRA defines seniority as longevity in employment together with any employment benefits that accrue with, or are determined by, longevity in employment. In the absence of a formal seniority system, such as one established through collective bargaining, USERRA looks to the custom and practice in your place of employment to determine your entitlement to any employment benefits that accrue with, or are determined by, longevity in employment.
A seniority-based right or benefit is one that accrues with, or is determined by, longevity in employment. Generally, whether a right or benefit is seniority-based depends on three factors:
(a) Whether the right or benefit is a reward for your length of service rather than a form of short-term compensation for work performed;
(b) Whether it is reasonably certain that you would have received the right or benefit if you had remained continuously employed during your period of service; and,
(c) Whether it is your employer's actual custom or practice to provide or withhold the right or benefit as a reward for your length of service. Provisions of an employment contract or policies in your employee handbook are not controlling if your employer's actual custom or practice is different from what is written in the contract or handbook.
A reasonable certainty is a high probability that you would have received the seniority or seniority-based right or benefit if you had been continuously employed. You do not have to establish that you would have received the benefit as an absolute certainty. You can demonstrate a reasonable certainty that you would have received the seniority right or benefit by showing that other employees with seniority similar to that which you would have had if you had remained continuously employed received the right or benefit. Your employer cannot withhold the right or benefit based on an assumption that a series of unlikely events could have prevented you from gaining the right or benefit.
(a) When you are reemployed, you are entitled to seniority and seniority-based rights and benefits that are established or become available after you entered service, even if those rights and benefits were not previously available. Those seniority-based rights and benefits must be made available upon your reemployment if you otherwise qualify for the right or benefit.
(b) If your employer eliminates seniority or a seniority-based right or benefit after you begin your period of service, you are entitled to be treated as if you had been continuously employed. For example, if an employer that previously made an assignment available based on seniority determines while you are absent to make the assignment available only to employees who had previously held certain other assignments or completed certain training, you may be entitled to the assignment if you can show with reasonable certainty that you would have acquired the necessary experience or training had you been continuously employed. In this situation, the employer is obligated to make reasonable efforts to help you become qualified for the position.
Yes. If you have a disability incurred in, or aggravated during, your period of service in the uniformed services, your employer must make reasonable efforts to accommodate your disability and to help you become qualified to perform the duties of your reemployment position. If you are not qualified for reemployment in the escalator position because of your disability after reasonable efforts by the employer to accommodate your disability and to
(a) A position that is equivalent in seniority, status, and pay to the escalator position; or,
(b) A position that is the nearest approximation to the equivalent position, consistent with the circumstances of your case, in terms of seniority, status, and pay.
(a) USERRA requires that you be qualified for your reemployment position regardless of your disability. Your employer must make reasonable efforts to help you to become qualified to perform the duties of this position. Your employer is not required to reemploy you on your return from service if you cannot, after reasonable efforts by your employer, qualify for the appropriate reemployment position.
(b) “Qualified” has the same meaning here as in § 1002.198.
Your rate of pay is determined by applying the same escalator principles that are used to determine your reemployment position, as follows:
(a) If you are reemployed in the escalator position, your employer must compensate you at the rate of pay associated with the escalator position. Your rate of pay must be determined by taking into account any pay increases, differentials, step increases, merit increases, or periodic increases that you would have attained with reasonable certainty had you remained continuously employed during your period of service. For example, if you missed a merit pay increase while you were performing service, but you qualified for previous merit pay increases, then your rate of pay should include the merit pay increase that you missed. If the merit pay increase that you missed during service is based on a skills test or examination, then your employer should give you a reasonable amount of time to adjust to your reemployment position and then give you the skills test or examination. The escalator principle also applies in the event a pay reduction occurred in the reemployment position during your period of service. Any pay adjustment must be made effective as of the date it would have occurred had your employment not been interrupted by military service.
(b) If you are reemployed in the pre-service position or another position, your employer must compensate you at the rate of pay associated with the position in which you are reemployed. As with the escalator position, your rate of pay must be determined by taking into account any pay increases, differentials, step increases, merit increases, or periodic increases that you would have attained with reasonable certainty had you remained continuously employed during your period of service.
Yes. If your most recent period of service in the uniformed services was more than 30 days you must not be discharged except for cause—
(a) For 180 days after your date of reemployment if your most recent period of uniformed service was more than 30 days but less than 181 days; or,
(b) For one year after the date of reemployment if your most recent period of uniformed service was more than 180 days.
You may be discharged for cause based either on your conduct or, in some circumstances, on the application of the escalator principle.
(a) In a discharge action based on your conduct, your employer bears the burden of proving that it is reasonable to discharge you for the conduct in question, and that you had notice that such conduct would constitute cause for discharge.
(b) If the application of the escalator principle after your reemployment results in your job position being eliminated, or in your being placed on layoff status, either of these situations would constitute cause for purposes of USERRA. Your employer bears the burden of proving that your job would have been eliminated or that you would have been laid off.
On reemployment you are treated as not having a break in service with your employer or employers maintaining a pension plan, for purposes of participation, vesting and accrual of benefits, by reason of your period of service in the uniformed services.
(a) Depending on the length of your period of service, you are entitled to take from one to ninety days following your service before reporting back to work or applying for employment (See § 1002.115). This period of time must be treated as continuous service with your employer for purposes of determining participation, vesting and accrual of pension benefits under the plan.
(b) If you are hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, your service you are entitled to report to or submit an application for reemployment at the end of the time period necessary for you to recover from the illness or injury. This period, which may not exceed two years from the date you completed your service, except in circumstances beyond your control, must be treated as continuous service with your employer for purposes of determining the participation, vesting and accrual of pension benefits under the plan.
(a) The Employee Retirement Income Security Act of 1974 (ERISA) defines an employee pension benefit plan as a plan that provides retirement income to employees, or defers employee income to a period extending to or beyond the termination of employment. Any such plan maintained by your employer or employers is covered under USERRA. USERRA also covers certain pension plans not covered by ERISA, such as those sponsored by a State, government entity, or church for its employees.
(b) USERRA does not cover pension benefits under the Federal Thrift Savings Plan; those benefits are covered under 5 U.S.C. 8432b.
With the exception of multiemployer plans, which have separate rules discussed below, your employer is liable to the pension benefit plan to fund any obligation of the plan to provide benefits that are attributable to your period of service. In the case of a defined contribution plan, once you are reemployed, your employer must allocate the amount of its make-up contribution for you, if any, your make-up employee contributions, if any, your elective deferrals, if any, and the repayment of distributions from the plan, if any, in the same manner and to the same extent that it allocates the amounts for other employees during the
(a) The employer is not required to make its contribution until you are reemployed. For employer contributions to a plan in which you are not required or permitted to contribute, your employer must make the contribution attributable to your period of service no later than thirty days after the date of your reemployment. If it is impossible or unreasonable for your employer to make the contribution within thirty days after the date you were reemployed, your employer must make the contribution as soon as practicable.
(b) If you are enrolled in a contributory plan you are allowed (but not required) to make up your missed contributions or elective deferrals. These makeup contributions or elective deferrals must be made during a time period starting with your date of reemployment and continuing for up to three times the length of your immediate past period of military service, with the repayment period not to exceed five years. If you cannot make up missed contributions as an elective deferral because you are no longer employed by the employer sponsoring the plan, the plan must give you an equivalent opportunity to receive the maximum employer matching contributions that were available under the plan during your period of uniform service through a match of after-tax contributions.
(c) If your plan is contributory and you do not make up your contributions or elective deferrals, you will not receive the employer match or the accrued benefit attributable to your contribution because your employer is required to make contributions that are contingent on or attributable to your contributions or elective deferrals only to the extent that you make up your payments to the plan. Any employer contributions that are contingent on or attributable to your make-up contributions or elective deferrals must be made according to the plan's requirements for employer matching contributions.
(d) You are not required to make up the full amount of employee contributions or elective deferrals that you missed making during your period of service. If you do not make up all of your missed contributions or elective deferrals, your pension may be less than if you had done so.
(e) Any vested accrued benefit in the pension plan that you were entitled to prior to your period of military service remains intact whether or not you choose to be reemployed under the Act after leaving the military.
(f) An adjustment will be made to the amount of employee contributions or elective deferrals you will be able to make to the pension plan for any employee contributions or elective deferrals you actually made to the plan during your period of service.
No. You are not required to make up a missed contribution in an amount that exceeds the amount you would have been permitted or required to contribute had you remained continuously employed during your period of service.
Yes. If you withdrew all or part your account balance from the pension benefits plan before you became reemployed, you must be allowed to repay the withdrawn amounts when you are reemployed. In the case of a defined benefit plan (but not a defined contribution plan) the amount you must repay includes any interest that would have accrued had the monies not been withdrawn. The repayment of these amounts must be made:
(a) During a time period starting with the date of reemployment and continuing for up to three times the length of the employee's immediate past period of military service, with the repayment period not to exceed five years; or
(b) During the time period provided by 26 U.S.C. 411(a)(7)(C) (if applicable); or
(c) Within such longer time period as may be agreed to between the employer and service member.
The amount of your pension benefit depends on the type of pension plan.
(a) In a non-contributory defined benefit plan, where the amount of your pension benefit is determined according to a specific formula, your benefit will be the same as though you had remained continuously employed during your period of service.
(b) In a contributory defined benefit plan, you will need to make up your contributions in order to have the same benefit as if you had remained continuously employed during your period of service.
(c) In a defined contribution plan, the benefit may not be the same as if you had remained continuously employed, even though you and your employer make up any contributions or elective deferrals attributable to your period of service, because you are not entitled to forfeitures and earnings or required to experience losses that accrued during your period or periods of service.
A multiemployer pension benefit plan is one to which more than one employer is required to contribute, and which is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and more than one employer. The Act uses ERISA's definition of a multiemployer plan. In addition to the provisions of USERRA that apply to all pension benefit plans, there are provisions that apply specifically to multiemployer plans, as follows:
(a) The last employer that employed you before your period of service is responsible for making the employer contribution to the multiemployer plan, if the plan sponsor does not provide otherwise. If the last employer is no longer functional, the plan must nevertheless provide coverage to the service member.
(b) An employer that contributes to a multiemployer plan and that reemploys you must provide written notice of your reemployment to the plan administrator within 30 days after your date of reemployment.
(c) You are entitled to the same employer contribution whether you are reemployed by your pre-service employer or by a different employer contributing to the same multiemployer plan.
In many pension benefit plans, your compensation determines the amount of your contribution or the retirement benefit to which you are entitled.
(a) Where your rate of compensation must be calculated to determine your
(b)(1) Where the rate of pay you would have received is not reasonably certain, such as where your compensation is based on commissions that you earned, your average rate of compensation during the 12-month period prior to your period of military service must be used.
(2) Where the rate of pay you would have received is not reasonably certain and you were employed for less than 12 months prior to the period of military service, your average rate of compensation must be derived from this shorter period of employment that preceded your service.
The Secretary, through the Veterans' Employment and Training Service (VETS), provides assistance to any person or entity with respect to employment and reemployment rights and benefits under USERRA. This assistance includes a wide range of compliance assistance outreach activities, such as responding to inquiries; conducting USERRA briefings and Webcasts; issuing news releases; and, maintaining the elaws USERRA Advisor (located at
If you are claiming entitlement to employment rights or benefits or reemployment rights or benefits and you allege that your employer has failed or refused, or is about to fail or refuse, to comply with the Act, you may file a complaint with VETS or initiate a private legal action in a court of law (
(a) In carrying out any investigation, VETS has, at all reasonable times, reasonable access to and the right to interview persons with information relevant to the investigation. VETS also has reasonable access to, for purposes of examination, the right to copy and receive any documents of any person or employer that VETS considers relevant to the investigation.
(b) VETS may require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. In case of disobedience of or resistance to the subpoena, the Attorney General may, at VETS' request, apply to any district court of the United States in whose jurisdiction such disobedience or resistance occurs for an order enforcing the subpoena. The district courts of the United States have jurisdiction to order compliance with the subpoena, and to punish failure to obey a subpoena as a contempt of court. This paragraph does not authorize VETS to seek issuance of a subpoena to the legislative or judicial branches of the United States.
No. If VETS determines as a result of an investigation that the complaint is meritorious, VETS attempts to resolve the complaint by making reasonable efforts to ensure that any persons or entities named in the complaint comply with the Act. If VETS' efforts do not resolve the complaint, VETS notifies the person who submitted the complaint of:
(a) The results of the investigation; and,
(b) The person's right to proceed under the enforcement of rights provisions in 38 U.S.C. 4323 (against a State or private employer), or 38 U.S.C. 4324 (against a Federal executive agency or the Office of Personnel Management (OPM)).
If you receive a notification from VETS of an unsuccessful effort to resolve your complaint relating to a State or private employer, you may request that VETS refer the complaint to the Attorney General.
(a) If the Attorney General is reasonably satisfied that your complaint is meritorious, meaning that you are entitled to the rights or benefits sought, the Attorney General may appear on your behalf and act as your attorney, and initiate a legal action to obtain relief for you.
(b) If the Attorney General determines that your complaint does not have merit, the Attorney General may decline to represent you.
No. You may initiate a private action for relief against a State or private employer if you decide not to apply to VETS for assistance.
Yes. If VETS notifies you that it is unable to resolve your complaint, you may pursue the claim on your own. You may choose to be represented by private counsel whether or not the Attorney General decides to represent you as to your complaint.
(a) If an action is brought against a State or private employer by the Attorney General, the district courts of the United States have jurisdiction over the action. If the action is brought against a State by the Attorney General, it must be brought in the name of the United States as the plaintiff in the action.
(b) If an action is brought against a State by a person, the action may be brought in a State court of competent jurisdiction according to the laws of the State.
(c) If an action is brought against a private employer or a political subdivision of a State by a person, the district courts of the United States have jurisdiction over the action.
(d) An action brought against a State Adjutant General, as an employer of a civilian National Guard technician, is considered an action against a State for purposes of determining which court has jurisdiction.
If you are a National Guard civilian technician you are considered a State employee for USERRA purposes, although you are considered a Federal employee for most other purposes.
(a) If an action is brought by the Attorney General against a State, the action may proceed in the United States district court for any district in which the State exercises any authority or carries out any function.
(b) If an action is brought against a private employer, or a political subdivision of a State, the action may proceed in the United States district court for any district in which the employer maintains a place of business.
An action may be brought only by the United States or by the person, or representative of a person, claiming rights or benefits under the Act. An employer, prospective employer or other similar entity may not bring an action under the Act.
In an action under USERRA only an employer or a potential employer, as the case may be, is a necessary party respondent. In some circumstances, such as where terms in a collective bargaining agreement need to be interpreted, the court may allow an interested party to intervene in the action.
No fees or court costs may be charged or taxed against you if you are claiming rights under the Act. If you obtain private counsel for any action or proceeding to enforce a provision of the Act, and you prevail, the court may award reasonable attorney fees, expert witness fees, and other litigation expenses.
No. USERRA does not have a statute of limitations, and it expressly precludes the application of any State statute of limitations. If you unreasonably delay asserting your rights, and that unreasonable delay causes prejudice to your employer, the courts have recognized the availability of the equitable doctrine of laches to bar a claim under USERRA.
In any action or proceeding the court may award relief as follows:
(a) The court may require your employer to comply with the provisions of the Act;
(b) The court may require your employer to compensate you for any loss of wages or benefits suffered by reason of your employer's failure to comply with the Act;
(c) The court may require your employer to pay you an amount equal to the amount of lost wages and benefits as liquidated damages, if the court determines that your employer's failure to comply with the Act was willful. A violation shall be considered to be willful if the employer or potential employer either knew or showed reckless disregard for whether its conduct was prohibited by the Act.
(d) Any wages, benefits, or liquidated damages awarded under paragraphs (b) and (c) of this section are in addition to, and must not diminish, any of the other rights and benefits provided by USERRA (such as, for example, the right to be employed or reemployed by the employer).
Yes. In an action brought in the name of the United States, for which the relief includes compensation for lost wages, benefits, or liquidated damages, the compensation must be held in a special deposit account and must be paid, on order of the Attorney General, directly to the person. If the compensation is not paid to you because of the Federal Government's inability to do so within a period of three years, the compensation must be converted into the Treasury of the United States as miscellaneous receipts.
Yes. A court may use its full equity powers, including the issuance of temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate the rights or benefits guaranteed to you under the Act.
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission (“Commission”) is publishing for comment amendments to the rule under Regulation S-P requiring financial institutions to adopt policies and procedures to safeguard customer information (“safeguard rule”). The proposed amendments would implement the provision in section 216 of the Fair and Accurate Credit Transactions Act of 2003 requiring proper disposal of consumer report information and records. Section 216 directs the Commission and other federal agencies to adopt regulations requiring that any person who maintains or possesses a consumer report or consumer information derived from a consumer report for a business purpose must properly dispose of the information. The proposed amendments also would require the policies and procedures adopted under the safeguard rule to be in writing.
Comments should be received on or before October 20, 2004.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number S7-33-04. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For information regarding the proposed rule amendments as they relate to brokers or dealers, contact Catherine McGuire, Chief Counsel, Brian Bussey, Assistant Chief Counsel, or Tara Prigge, Attorney, Office of Chief Counsel, at the Division of Market Regulation, (202) 942-0073; as they relate to transfer agents registered with the Commission, contact Jerry Carpenter, Assistant Director, or David Karasik, Special Counsel, Office of Clearance and Settlement, at the Division of Market Regulation, (202) 942-4187; or as they relate to investment companies or to investment advisers registered with the Commission, contact Penelope W. Saltzman, Branch Chief, or Vincent M. Meehan, Attorney, Office of Regulatory Policy, at the Division of Investment Management, (202) 942-0690, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549.
The Commission is requesting public comment on proposed amendments to Regulation S-P under section 501(b) of the Gramm-Leach Bliley Act (“GLBA”) [15 U.S.C. 6801(b)], section 216 of the Fair and Accurate Credit Transactions Act of 2003 (“FACT Act” or “Act”) [15 U.S.C. 1681w], the Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. 78], the Investment Company Act of 1940 (the “Investment Company Act”) [15 U.S.C. 80a], and the Investment Advisers Act of 1940 (the “Investment Advisers Act”) [15 U.S.C. 80b].
Section 216 of the FACT Act adds a new section 628 to the Fair Credit Reporting Act (“FCRA”).
The Commission's safeguard rule, section 30 of Regulation S-P,
The Commission also is taking this opportunity to propose another amendment to the safeguard rule to address weaknesses the staff has seen in the documentation of safeguarding policies and procedures. Since 2001, our staff has examined brokers, dealers, investment companies, and registered investment advisers for their compliance with the safeguard rule. In the course of these examinations, our staff has identified firms that lack written policies and procedures that address the safeguarding of customer information and records. Our proposal today would address this weakness by specifying that information safeguard policies and procedures must be “written.”
The proposed disposal rule would be part of Regulation S-P.
Proposed section 248.30(b)(1)(i) defines the term “consumer report” to have the same meaning as in section 603(d) of the FCRA.
Under this definition, however, information that is derived from consumer reports but does not identify any particular individual would not be covered under the proposed rule. Limiting “consumer report information” to information that identifies particular individuals is consistent with current law relating to the scope of the term “consumer report” under section 603(d) of the FCRA and with the purposes of section 216 of the FACT Act.
Proposed section 248.30(b)(1)(iii) defines “disposal” to mean the discarding or abandonment of consumer report information, as well as the sale, donation, or transfer of any medium, including computer equipment, upon which consumer report information is stored. The sale, donation, or transfer, as opposed to the discarding or abandonment, of consumer report information would not be considered a “disposal” under the proposed rule. For example, an entity subject to the proposed disposal rule that transfers consumer report information to a third party for marketing purposes would not be discarding the information for purposes of the proposed disposal rule.
Proposed section 248.30(b)(1)(iv) defines “notice-registered broker-dealers” to mean a broker or dealer registered by notice with the Commission under section 15(b)(11) of the Exchange Act.
Proposed section 248.30(b)(1)(v) defines “transfer agent” to have the same meaning as in section 3(a)(25) of the Exchange Act.
As to the first criterion, the FACT Act and proposed disposal rule make clear that the disposal requirements apply not only to consumer reports, but also to records containing “consumer information, or any compilation of consumer information, derived from consumer reports.”
As to the second criterion, “for a business purpose” includes all business reasons for which a covered entity may possess or maintain consumer report information.
The Commission requests comment on the scope of the proposed rule. The Commission also requests comment on whether there are any “persons or classes of persons” covered by the proposed disposal rule that it should consider exempting from the rule's application.
In determining what measures are “reasonable” under the proposed disposal rule, we expect that entities covered by the rule would consider the sensitivity of the consumer report information, the size of the entity and the complexity of its operations, the costs and benefits of different disposal methods, and relevant technological changes. “Reasonable measures” may require elements such as the establishment of policies and procedures governing disposal, as well as appropriate employee training.
The flexible standard for disposal in the proposed rule would allow covered entities to make decisions appropriate to their particular circumstances and should minimize the disruption of existing practices to the extent that they already provide appropriate protections for consumer report information. The standard also is intended to minimize the burden of compliance for smaller entities. In addition, a “reasonable measures” standard would harmonize the proposed disposal rule with the Commission's safeguard rule, which incorporates a “reasonable design” standard in the requirement for policies and procedures to safeguard consumer information. This is designed to prevent covered entities from being subject to conflicting standards.
We recognize that in some circumstances, “customer records and information” subject to the safeguard rule may overlap with “consumer report information” subject to the proposed disposal rule. To the extent there is overlap, customer records and information would be subject to the proposed disposal rule. We expect, however, that a covered entity subject to the safeguard rule would already have addressed the disposal of customer records and information as one part of its overall safeguard policies and procedures. These procedures must be reasonably designed to insure the security and confidentiality of customer records and information, and protect against unauthorized access to or use of customer records or information that could result in substantial harm or inconvenience to any customer.
Despite the benefits of a flexible “reasonableness” standard, the Commission recognizes that such a standard could leave covered entities with some uncertainty about compliance. While each covered entity would have to evaluate what is appropriate for its size and the complexity of its operations, we believe that “reasonable” disposal measures for purposes of the proposed disposal rule could include:
• Implementing and monitoring compliance with policies and procedures that require the burning, pulverizing, or shredding of papers containing consumer report information so that the information cannot practicably be read or reconstructed;
• Implementing and monitoring compliance with policies and procedures that require the destruction or erasure of electronic media containing consumer report information so that the information cannot practicably be read or reconstructed; and
• After due diligence, entering into and monitoring compliance with a written contract with another party engaged in the business of record destruction to dispose of consumer report information in a manner that is consistent with this rule.
We invite comment on the proposed standard for disposal. In particular, we seek comment on whether commenters believe the proposed “reasonableness” standard provides sufficient guidance to covered entities. We also seek comment on whether the proposed disposal rule should include alternative standards, specify particular disposal methods, or should provide examples, and what those examples should be. Finally, we seek comment on whether the disposal rule should require disposal measures to be in writing.
This section makes clear that nothing in the proposed disposal rule is intended to create a requirement that a covered entity maintain or destroy any record pertaining to an individual. Nor is the rule intended to affect any requirement imposed under any other provision of law to maintain or destroy such records.
The FACT Act differs in scope from the GLBA. Accordingly, Regulation S-P (including the safeguard rule) and the proposed disposal rule have some differences in scope with respect both to the information and entities that are subject to the respective rules.
The current safeguard rule requires brokers, dealers, investment companies, and registered investment advisers to adopt policies and procedures to safeguard customer information. These procedures must be reasonably designed to:
• Insure the security and confidentiality of customer records and information;
• Protect against any anticipated threats or hazards to the security and integrity of those records; and
• Protect against unauthorized access to or use of those records or information which could result in substantial harm or inconvenience to any customer.
As noted above, some firms our staff has examined lack written policies and procedures that address these requirements. In the absence of reasonable documentation, it is difficult to identify these policies and procedures and test for compliance with the safeguard rule. In addition, we strongly question whether an organization of any size and complexity could reasonably manage to safeguard customer records and information without written policies and procedures. Finally, we note that the Agencies have required written policies and procedures.
We note that our examiners have inspected many firms that have already adopted such written policies and procedures. In large and complex organizations, with thousands of employees and multiple offices, these written policies and procedures generally address procedures at several levels, going from an organization-wide policy statement down to detailed procedures addressing particular controls.
We recognize that many firms subject to the safeguard rule are small and simple organizations, with few employees and only one office. Nonetheless, we believe these firms would benefit from recording their policies and procedures in writing as a reference for employees. In every case, the written policies and procedures should be reasonably designed, within the circumstances of each particular institution, to achieve the goals set forth in the rule. We ask for comment on our proposal to require that policies and procedures under the safeguard rule must be written.
When we adopted the safeguard rule, we believed that brokers, dealers, investment companies, and registered investment advisers should have the flexibility to tailor their policies and procedures to their own organization's specific circumstances. Thus, our proposal noted that:
We have not prescribed specific policies or procedures that financial institutions must adopt. Rather, we believe it more appropriate for each institution to tailor its policies and procedures to its own systems of information gathering and transfer and the needs of its customers.
We continue to believe that this approach is appropriate. Therefore, we are not proposing specific policies and procedures that all firms subject to the rule must implement. Nevertheless, we seek comment on ways to maintain a flexible approach, while establishing certain elements in the rule that a firm must include in its policies and procedures. For example, the FTC's Safeguard Rule, which applies to a diverse range of financial institutions, requires that financial institutions subject to the rule adopt a written information security program “appropriate to [the institution's] size and complexity, the nature and scope of [its] activities, and the sensitivity of any customer information at issue.”
We request comment on all of the provisions of the proposed disposal rule described above and on the proposed amendments to the safeguard rule and to the scope provisions of Regulation S-P. We seek suggestions for additional provisions or changes, and comments on other matters that might have an effect on the proposed disposal rule and proposed amendments. We encourage commenters to provide data to support their views.
The Commission is sensitive to the costs and benefits imposed by its rules. As discussed above, the proposed amendments to Regulation S-P would: (i) Implement section 216 of the FACT Act by requiring covered entities that maintain or possess consumer report information derived from a consumer report for a business purpose to properly dispose of the information; and (ii) require that an institution's safeguarding policies and procedures be in writing.
The purpose of section 216 of the FACT Act is to prevent unauthorized disclosure of information contained in a consumer report and to reduce the risk of fraud or related crimes, including identity theft.
With respect to the safeguarding amendment, as noted above, we believe it is very unlikely that a firm of any size and complexity could adequately safeguard customer information and records without written policies and procedures. At a minimum, we believe the proposed amendment would benefit firms because written policies and procedures will (i) eliminate uncertainty as to what actions an employee must take to protect customer records and information, and (ii) promote more systematic and organized reviews of safeguard policies and procedures by firms. Some firms and their customers may benefit further from the proposal if the firm develops more comprehensive and effective policies as it translates informal, unwritten policies into writing.
As noted above, it is extremely difficult to test the adequacy of unwritten policies and to ensure that they are in compliance with the requirements in the safeguarding rule. Requiring that a firm's policies and procedures be in writing should benefit investors by enhancing the ability of our examiners to conduct compliance oversight.
We believe that both the proposed disposal rule and the safeguarding rule amendment will impose minimal costs on firms. The proposed disposal rule does not establish any specific requirements for the disposal of consumer report information. In cases in which a firm is already providing adequate protections for consumer report information in conjunction with the existing requirement to protect consumer records and information, no additional actions would have to be taken by the firm. In other cases, a firm, depending on its particular circumstances, may have to provide employee training, or establish clear procedures for consumer report information disposal. Costs to firms that are not already in compliance will vary depending on the size of the firm, the adequacy of its existing disposal policy, and the nature of the firm's operation. As noted above, the flexible standard in the proposed disposal rule is specifically designed to minimize the burden of compliance for smaller entities. The emphasis on performance rather than design standards in the proposed rule takes account of the small entity's size, operations, and sophistication, as well as the costs and benefits of alternative disposal methods. In addition, the “reasonable measures” standard in the proposed rule is consistent with the current safeguard rule. Therefore, it should be relatively easy for a firm that does not currently have policies and procedures that could apply to consumer report information to address the disposal of that information by adopting it as one part of its overall safeguarding policies and procedures.
Similarly, we expect any costs associated with the proposed safeguarding rule amendment to be minimal. Firms have been required to have reasonable polices and procedures in place since 2001. As part of this requirement and as a good business practice, we believe that most firms have already established their policies in writing. For the minority of firms that have clear but unwritten policies, the sole cost would involve transcribing what is understood and accepted practice. If a firm has not given significant thought to the safeguarding of customer records and information, the firm may incur additional costs if it develops more comprehensive and effective policies in the course of documentation.
We request comment on the potential costs and benefits identified in the proposal and any other costs and benefits that may result from the proposed disposal rule and safeguard rule amendment. In particular, we invite comment on the costs and benefits of the proposed standards in the disposal rule and the costs and benefits of any alternative standards. For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, the Commission also requests information regarding the impact of the proposed rule on the economy on an annual basis. Commenters are requested to provide data to support their views.
In accordance with the Paperwork Reduction Act of 1995 (“PRA”),
Certain provisions of the proposed amendment to the safeguard rule may constitute a “collection of information” within the meaning of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Brokers, dealers, investment companies, and registered investment advisers are required to adopt policies and procedures to safeguard customer information. The proposed amendment to the safeguard rule would require each of these institutions to document those policies and procedures in writing.
The proposed amendment to the safeguard rule is intended to ensure reasonable protection for customer records and information, and to permit Commission staff to identify and test effectively for compliance with the rule. In addition, we believe the requirement to document policies and procedures in writing will (i) eliminate uncertainty as to what actions an employee must take to protect customer records and information, and (ii) promote more systematic and organized reviews of safeguard policies and procedures by firms.
According to Commission filings, there are approximately 6,768 broker-dealers, 5,182 investment companies, and 7,977 registered investment advisers. Although each of these entities must comply with the safeguard rule, we believe that institutions with one or more financial affiliates (whether they are institutions regulated by the Commission or by other Federal financial regulators) are likely to have developed safeguard policies and
Based on a review of forms filed with the Commission, we estimate that approximately 70 percent of institutions subject to the safeguard rule, or 13,949 institutions, have a corporate affiliate.
We also believe that most institutions we regulate would adopt safeguard policies and procedures and document those policies and procedures as a matter of good business practice, regardless of the Commission's safeguard rule. We expect these institutions have a strong interest apart from our rule in preventing security threats, such as identity theft or threats to the computer system that would allow unauthorized persons to obtain information about the firms' customers and their business. For purposes of the PRA, we estimate that 10 percent of these institutions have not already documented their policies and procedures. Thus, we estimate that, if the proposed rule amendment is adopted, 1,295 institutions would have to document policies and procedures in response to the proposed rule in the first year after adoption.
In addition to existing registrants, we estimate that, on average, approximately 1,475 new broker-dealers, investment companies and registered investment advisers register with the Commission each year.
As noted above, we expect that the policies and procedures adopted by the responding institutions will vary considerably depending on the size of the institution, the way in which it collects information, the number and types of entities to which it transfers information, and the ways in which it stores, transfers, and disposes of customer information. Thus, for example, a small registered investment adviser with fewer than 10 employees may require a limited number of policies and procedures to address a limited scope of information transfer, storage and disposal. A large broker-dealer or fund complex with many affiliated entities, on the other hand, is more likely to have developed extensive policies and procedures on an organization-wide basis that address many different levels of control. The documentation of these policies and procedures will vary widely in length and complexity of the documentation and will correspond to the range and complexity of the institution's policies and procedures.
Of the institutions registered with the Commission, we estimate that 5,424 investment advisers have 10 or fewer employees.
Other institutions, such as large fund complexes or clearing broker-dealers, may require more time to document extensive policies and procedures that apply to all the institutions in the complex. We assume that 10 percent of these, or 875 institutions would not already have written policies and procedures in compliance with the proposed rule.
In addition to existing registrants, as noted above, we estimate that 44 new registrants would not have already documented their safeguard policies and procedures as a matter of good business practice. Of these, we estimate that 14 will be smaller institutions.
Going forward, we estimate that 10 percent of the 19,927 registered institutions will review and update their policies and procedures each year. For purposes of the PRA, we estimate that 638 of these will be smaller institutions that would take between 2 and 10 hours, with an average of 6 hours each, to review and update their safeguard policies and procedures. Thus, we estimate an annual burden for these smaller institutions of 3,828 hours.
The proposed rules do not contain express provisions governing the retention of records related to the policies and procedures. Nevertheless, an institution subject to the safeguard rule is likely to retain the documentation in order to assist in informing and training employees, in reviewing the policies for their effectiveness, and to demonstrate compliance with the rule to the Commission's inspections staff. These records would not have to be retained for any particular period, but are likely to be retained as long as the institution maintains policies and procedures.
Broker-dealers, investment companies and registered investment advisers all are required to comply with the safeguard rule and would be required to comply with the proposed amendment.
Under the proposal, the written safeguard policies and procedures would not be filed with or otherwise submitted to the Commission. Accordingly, we make no assurance of confidentiality with respect to the collections of information.
Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comment to:
(i) Evaluate 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;
(ii) Evaluate the accuracy of the Commission's estimate of the burden of the proposed collection of information;
(iii) Determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and
(iv) Determine whether there are ways to minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.
Persons wishing to submit comments on the collection of information requirements should direct them to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 3208, New Executive Office Building, Washington, DC 20503; and (ii) Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549. Any comments should make reference to File Number S7-33-04. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication, so a comment to OMB is best assured of having its full effect if OMB receives it within 30 days after publication. Requests for materials submitted to OMB by the Commission with regard to this collection of information should be made in writing, should refer to File Number S7_04, and should be submitted to the Securities and Exchange Commission, Records Management, Office of Filings and Information Services, 450 Fifth Street, NW., Washington, DC 20549.
This Initial Regulatory Flexibility Analysis (“IRFA”) has been prepared in accordance with 5 U.S.C. 603. It relates to the proposed disposal rule, which requires that reasonable measures be taken to protect against unauthorized access to consumer report information during its disposal. It also relates to the proposed amendment to the safeguard rule that would require financial institutions to document policies and procedures to safeguard customer information in writing.
Section 216 of the FACT Act requires the Commission to issue regulations regarding the proper disposal of consumer report information in order to prevent sensitive financial and personal information from falling into the hands of identity thieves or others who might use the information to victimize consumers. The requirements of the proposed rule are intended to fulfill the obligations imposed by section 216.
As discussed above, the proposed amendment to the safeguard rule would require entities subject to the safeguard rule to document their policies and procedures in writing. The proposed amendment is intended to ensure reasonable protection for customer records and information, and to permit compliance oversight by our examiners.
The objectives of the proposed disposal rule and the proposed amendment to the safeguard rule are discussed above. The legal basis for the proposed disposal rule is section 216 of the FACT Act. The legal basis for the proposed amendment to the safeguard rule is section 501(b) of the GLBA, sections 17 and 23 of the Exchange Act, sections 31 and 38 of the Investment Company Act, and sections 204 and 211 of the Investment Advisers Act.
The proposed disposal rule, which tracks the language of section 216 of the FACT Act, would apply to brokers and dealers (other than notice-registered broker-dealers), investment companies, registered investment advisers, and registered transfer agents that maintain or otherwise possess consumer information, or any compilation of consumer information, for a business purpose.
We invite comment from small entities that would be subject to the proposed disposal rule and amendment to the safeguard rule. We invite comment generally regarding information that would help us to quantify the number of small entities that may be affected by the proposal.
The proposed disposal rule would not impose any reporting or any specific recordkeeping requirements within the meaning of the Paperwork Reduction Act, discussed above. The proposed disposal rule would require covered entities, when disposing of consumer report information, to take reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal. What is considered “reasonable” will vary according to an entity's size and the complexity of its operations, the costs and benefits of available disposal methods, and the sensitivity of the information involved. This flexibility is intended to reduce the burden that might otherwise be imposed on small entities by a more rigid, prescriptive rule. The Commission is concerned about the potential impact of the proposed rule on small entities, and invites comment on the costs of compliance for such parties.
With respect to the proposed amendment to the safeguard rule, we note that firms are already required to have policies and procedures that address the safeguarding of customer information and records. As noted above, this requirement provides a flexible standard that allows each firm to tailor these policies and procedures to the firm's particular systems, methods of information gathering, and customer needs. We assume that most institutions have already documented these policies and procedures, but the proposed amendment would require all entities to put their policies and procedures in writing. Nevertheless, the amount of time it will take entities that do not have written policies and procedures will vary based upon the extent and complexity of the policies and procedures the entity has adopted. Accordingly, a small entity with complex and very detailed policies and procedures would likely take more time to document those policies and procedures than would a small entity with relatively simple undocumented policies and procedures.
We have not identified any other federal statutes, rules, or policies that would conflict with the proposed disposal rule's requirement (i) that covered persons take reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal or (ii) that safeguarding policies and procedures must be in writing. However, we request comment on the extent to which other federal standards involving privacy or security of information may duplicate, satisfy, or inform the proposal's requirements. We also seek comment and information about any statutes or rules that may conflict with the proposed disposal rule requirements, as well as any other state, local, or industry rules or policies that require covered entities to implement practices that comport with the requirements of the proposed rule.
The Regulatory Flexibility Act directs the Commission to consider significant alternatives that would accomplish the stated objectives while minimizing any significant adverse impact on small businesses. In connection with the proposal, the Commission considered the following alternatives: (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance and reporting requirements under the proposed rules for small entities; (iii) the use of performance rather than design standards; and (iv) an exemption from coverage of the proposed rules, or any part thereof, for small entities.
With respect to the proposed disposal rule, the Commission does not presently believe that an exemption from coverage or special compliance or reporting requirements for small entities would be consistent with the mandates of the FACT Act. In addition, the Commission does not presently believe that clarification, consolidation, or simplification of the proposed amendment for small entities is feasible or necessary. Section 216 of the FACT Act addresses the protection of consumer privacy, and consumer privacy concerns do not depend on the size of the entity involved. However, we have endeavored throughout the proposed disposal rule to minimize the regulatory burden on all covered entities, including small entities, while meeting the statutory requirements. Small entities should benefit from the flexible standards in the proposed disposal rule. In addition, existing emphasis on performance rather than design standards in the proposed rule take account of the covered entity's size and sophistication, as well as the costs and benefits of alternative disposal methods. The Commission welcomes comment on any alternative system that would be consistent with the FACT Act but would minimize the impact on small entities. Comments should describe the nature of any impact on small entities and provide empirical data.
With respect to the proposed amendment to the safeguard rule, we do not presently believe that an exemption from coverage or special reporting or compliance requirements for small entities is feasible or necessary. The requirement that covered entities document their safeguard policies and procedures in writing is necessary to promote systematic and organized reviews of these policies and procedures by the entity, as well as to allow Commission staff to identify and test effectively for compliance with the safeguard rule.
Similarly, the Commission does not presently believe that clarification, consolidation, or simplification of the proposed amendment for small entities is feasible or necessary. The proposed requirement that the safeguard policies and procedures be in writing, as discussed above, is essential to allowing
The safeguard rule embodies performance rather than design standards. It affords each firm the flexibility to adopt and implement policies and procedures that are appropriate in light of the institution's size and the complexity of its operations. The documentation of the policies and procedures would reflect these performance standards. Accordingly, the writing required under the proposed amendment would only be as technical or complex as the policies and procedures required to be documented.
We encourage written comments on matters discussed in the IRFA. In particular, the Commission seeks comment on: (i) The number of small entities that would be affected by the proposed rule; and (ii) the impact of the proposed rule on small entities. Commentators are asked to describe the nature of any impact and provide empirical data supporting the extent of the impact.
Section 3(f) of the Exchange Act and section 2(c) of the Investment Company Act require the Commission, whenever it engages in rulemaking and must consider or determine if an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action would promote efficiency, competition, and capital formation. Moreover, section 23(a)(2) of the Exchange Act requires the Commission, when proposing rules under the Exchange Act, to consider the impact the proposed rules may have upon competition. Section 23(a)(2) of the Exchange Act prohibits the Commission from adopting any rule that would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
We do not believe that the proposed disposal rule will have an anti-competitive impact. The proposed disposal rule applies to all brokers and dealers (other than notice-registered broker-dealers), investment companies, registered investment advisers, and registered transfer agents. Each of these institutions must take reasonable measures to properly dispose of consumer report information.
Other financial institutions will be subject to substantially similar disposal requirements under rules proposed by the Agencies. Under the FACT Act, the Agencies and the Commission have worked in consultation and coordination with one another to ensure the consistency and comparability of the proposed regulations. Therefore, all financial institutions would have to bear the costs of implementing the rules or substantially similar rules. Although these costs would vary among entities subject to the proposed rule, we do not believe that the costs would be significantly greater for any particular entity or entities when calculated as a percentage of overall costs.
Furthermore, we believe the proposed disposal rule would have little effect on efficiency and capital formation. The proposed rule will result in some additional costs for some entities, particularly those entities that do not currently take reasonable measures to properly dispose of consumer report information. However, we believe the additional costs are small enough that they would not affect the efficiency of these entities.
With respect to the proposed amendment to the safeguard rule, we do not believe the proposed amendment will have an anti-competitive impact. As noted above, we believe that most brokers, dealers, investment companies, and registered investment advisers already have written safeguard policies and procedures. To the extent some do not, those firms would have to conform to standards that many firms have met voluntarily. This proposed amendment also would be consistent with the requirement under the Interagency Guidelines and the FTC's Safeguard Rule that financial institutions they regulate must document their policies and procedures in writing.
Furthermore, we believe the proposed amendment would have little effect on efficiency and capital formation. We expect the proposal will increase efficiency among those firms that do not currently have written policies and procedures because it should promote more systematic and organized reviews of these policies and procedures. The proposed amendment will result in some additional costs for firms that do not currently have written policies and procedures. However, we believe the additional costs are small enough that they would not affect the efficiency of these firms.
The Commission seeks comment regarding the impact of the proposed rules on efficiency, competition, and capital formation. For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, the Commission also requests information regarding the potential effect of the proposed rules on the U.S. economy on an annual basis. Commentators are requested to provide empirical data to support their views.
The Commission is proposing amendments to Regulation S-P pursuant to the authority set forth in section 501(b) of the GLBA [15 U.S.C. 6801(b)], section 216 of the FACT Act [15 U.S.C. 1681w], sections 17 and 23 of the Exchange Act [15 U.S.C. 78q and 78w], sections 31(a) and 38 of the Investment Company Act [15 U.S.C. 80a-30(a) and 80a-37], and sections 204 and 211 of the Investment Advisers Act [15 U.S.C. 80b-4 and 80b-11].
Brokers, Dealers, Investment advisers, Investment companies, Privacy, Reporting and recordkeeping requirements, Transfer agents.
For the reasons set out in the preamble, title 17, chapter II of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 248 is revised to read as follows:
15 U.S.C. 6801-6809; 15 U.S.C.1681w; 15 U.S.C. 78q, 78w, 78mm, 80a-30(a), 80a-37, 80b-4, and 80b-11.
2. Section 248.1, the first sentence of paragraph (b) is amended by revising the phrase “This part” to read “Except with respect to § 248.30(b), this part”.
3. Section 248.2, paragraph (b) is amended by revising the phrase “Any futures commission merchant” to read “Except with respect to § 248.30(b), any futures commission merchant”.
4. Section 248.30 is amended as follows:
a. Revise the section heading;
b. Introductory text, paragraphs (a), (b), and (c) are redesignated as
c. In the newly redesignated introductory text of paragraph (a), add the word “written” before the phrase “policies and procedures” in the first and second sentences; and
d. Add paragraph (b).
The revision and addition read as follows:
(b)
(ii)
(iii)
(A) The discarding or abandonment of consumer report information; and
(B) The sale, donation, or transfer of any medium, including computer equipment, on which consumer report information is stored.
(iv)
(v)
(2)
(ii)
(A) To require any broker, dealer, or investment company, or any investment adviser or transfer agent registered with the Commission to maintain or destroy any record pertaining to an individual that is not imposed under other law; or
(B) To alter or affect any requirement imposed under any provision of law to maintain or destroy any of those records.
By the Commission.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Advance notice of proposed rulemaking and notice of public meeting.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are issuing this advance notice of proposed rulemaking (ANPR) to solicit comments that can be used to assist in the implementation of section 1432 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136) in the Federal Acquisition Regulation (FAR). Section 1432 amends section 8002(d) of the Federal Acquisition Streamlining Act (FASA) to expressly authorize the use of time-and-materials (T&M) and labor-hour (LH) contracts for the procurement of commercial services. Implementation of section 8002(d) will require certain revisions to the FAR's current commercial item policies and associated clauses to ensure they effectively address the risks associated with T&M and LH contracting. Current policies were designed only to support purchases through firm-fixed price contracts and fixed-rice contracts with economic price adjustments.
The Councils, in collaboration with OFPP, invite interested parties from both the private and public sector to provide comments on the effective use of T&M and LH contracts for the acquisition of commercial items and suggestions for implementing the specific requirements of section 8002(d). Comments are especially welcome on the specific issues discussed in the “Supplementary Information” section of this notice. See, in particular, the two sets of questions posed under “Solicitation of Public Comment” and the draft regulatory language provided under “Regulatory Amendments Under Consideration.”
Directions to the meeting can be found at the Web site. Participants are encouraged to check the Web site prior to the public meeting to ensure the location has not changed as a result of a large number of registrants.
The public meeting is physically accessible to people with disabilities. Request for sign language interpretation or other auxiliary aids should be directed to Mr. Gerald Zaffos (202-208-6091) at least 5 days prior to the meeting.
• Federal eRulemaking Portal:
• Agency Web Site:
• Mail:
• Fax: 202-501-4067.
• Mail: General Services Administration, Regulatory Secretariat (VR), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
The FAR Secretariat at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Mr. Gerald Zaffos, Procurement Analyst, at (202) 208-6091. Please cite ANPR, FAR case 2003-027.
Title XIV of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136), referred to as the Services Acquisition Reform Act (SARA), includes a provision, section 1432, which expressly authorizes the use of T&M and LH contracts for the procurement of commercial services. Section 1432 amends section 8002(d) (41 U.S.C. 264 note) of FASA. As amended, section 8002(d) places certain conditions on the use of T&M and LH contracts for purchases of commercial services under FAR Part 12, namely: (1) The purchase must be made on a competitive basis; (2) The service must fall within certain categories as prescribed by section 8002(d); (3) The contracting officer must execute a determination and findings (D&F) that no other contract type is suitable; and (4) The contracting officer must include a ceiling price that the contractor exceeds at its own risk and that may be changed only upon a determination documented in the contract file that the change is in the best interest of the procuring agency. The Councils are issuing this ANPR to seek the public's input for how best to implement the requirements and authorities of section 8002(d).
This ANPR is not intended to affect the special ordering procedures issued by the GSA pursuant to FAR 8.402 for the procurement of services under the Multiple Award Schedules (MAS) Program. MAS policies regarding the placement of orders on a T&M and LH basis will be conformed to the FAR when FAR coverage is finalized.
The Councils, along with OFPP, wish to ensure that T&M and LH contracting is used only when conditions warrant and that the terms and conditions incorporated into resulting T&M and LH contracts adequately protect the parties' respective interests based on the risk each party is being asked to bear. The
1.
a. Commercial services procured for support of a commercial item, as described in 41 U.S.C. 403(12)(E); and
b. Any other category of commercial services that is designated by the Administrator of OFPP on the basis that—
(i) The commercial services in such category are of a type of commercial services that are commonly sold to the general public through use of T&M or LH contracts; and
(ii) It would be in the best interests of the Federal Government to authorize use of T&M or LH contracts for purchases of the commercial services in such category.
2. In furtherance of its responsibility under section 8002(d), OFPP seeks to better understand how T&M and LH contracts are used commercially and when their use is in the best interest of the Government. OFPP has developed questions to obtain this information and requested that the Councils pose them as part of this ANPR.
Accordingly, the Councils invite the public to provide comments addressing the appropriate use of T&M and LH contracting in commercial item acquisitions and especially welcome feedback to the following questions: (In commenting, please include citations, as appropriate, to relevant sources of information that may be used to substantiate the basis for the response provided.)
a. What, if any, types of commercial services are sold to the general public predominantly on a T&M or LH basis?
b. What types of commercial services are rarely, if ever, sold to the general public on a T&M or LH basis?
c. What types of commercial services are commonly sold to the general public through both a T&M or LH and fixed-price basis?
d. What conditions typically exist when services are commonly sold to the general public through the use of T&M or LH contracts?
e. Should this rule adopt the same policy set forth in the FAR for non-commercial items and in GSA's special ordering procedures for acquiring commercial services under the Multiple Award Schedules (MAS) (see
f. What steps should a contracting officer be required to take to establish that a fixed-price contract is not suitable? (Since use of cost-type contracts is prohibited under FAR Part 12, a contracting officer would not be expected to address why a cost-type contract was not suitable prior to using a T&M and LH contract for a commercial item acquisition.)
OFPP intends to share the public's feedback with the advisory panel that is being established pursuant to section 1423 of SARA to review commercial practices and other acquisition-related issues.
3.
As part of their review, the Councils are considering the provisions that have been traditionally incorporated into T&M and LH contracts pursuant to FAR Subpart 16.6. In considering changes, the Councils recognize that the provisions and clauses established and prescribed by Subpart 12.3 are meant to address, to the maximum extent practicable, commercial market practices for a wide range of potential Government acquisitions of commercial items.
To assist in this effort, the Councils invite the public, and especially small business, to provide comment on industry practices, including terms and conditions, relating to commercial use of T&M and LH contracts. Comments are especially welcome in response to the following questions: (In commenting, please include citations, as appropriate, to relevant sources of information that may be used to substantiate the basis for the response provided.)
a. What type of surveillance is conducted under T&M and LH commercial contracts (
b. What responsibility should the contractor bear for correction of non-conforming services under T&M and LH commercial contracts (
c. What oversight is used to ensure work is being properly charged under T&M and LH contracts (
d. Is consent to subcontract required for subcontracts not identified in the original proposal?
e. How are material handling or subcontract administration rates charged under T&M commercial contracts? If material handling or subcontract administration rates are reimbursed based on actual rates, how can this be done without application of FAR Subpart 31.2?
f. What is the impact if Cost Accounting Standards apply to these contracts?
g. How often and under what circumstances does the customer provide property on a T&M or LH contract? How is the property managed and controlled?
The Councils are considering amendments to commercial items policies in FAR Part 12 and associated clauses in FAR Part 52 to ensure the effective use of T&M and LH contracts consistent with the parameters established in section 8002(d). Changes are also being considered for FAR Parts 2, 10, and 16.
Although the Councils have not yet agreed upon proposed FAR amendments, their preliminary thinking on regulatory implementation as of the publication of this ANPR is set forth below. The specific shape of a proposed or interim rule will not be decided until after the public's input has been considered. (For example, this language does not attempt to identify categories of services, since, as explained above, additional information will be needed to assist OFPP in making this determination.) The public is welcome to comment on these preliminary changes as part of their comments in response to this notice and at the public meeting. The main changes that would be made by this draft proposal are described below:
1.
The Councils and OFPP generally would expect to find that services are likely to be sold on both a T&M or LH and fixed-price basis in many instances. In these cases, determining whether fixed-price contracts are unsuitable may be more a function of the specific circumstances surrounding the acquisition than the specific nature of the service being acquired.
For these reasons, the preliminary draft would require contracting officers to describe the market research they have undertaken to evaluate contract options and the rationale for concluding, based on this research, that fixed-prices for the delivery of completed tasks is unsuitable under the circumstances. The preliminary draft would require the contracting officer to prepare a D&F that establishes either (1) that it is not possible at the time of placing the contract to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of certainty or, (2) if work is sufficiently understood to allow for pricing on a fixed-price basis, that fixed pricing would unnecessarily inflate the Government's costs or impose unreasonable risk on the contractor. The preliminary draft encourages indefinite-delivery contracts that provide for orders to be issued on a T&M or LH basis, to also provide for orders to be issued on a fixed-price basis. In this situation, a D&F is executed for each T&M or LH order. If it is not practicable to provide for both contract types, then the D&F is executed for the contract and additionally must explain why providing for an alternative fixed-price structure is not practicable.
2.
•
•
In addition, paragraphs (b)(1) and (b)(4)(iii) of FAR clause 52.232-7 allow for the reimbursement of reasonable and allocable material handling costs and/or subcontract administration costs arising from the handling of materials and/or the administration of subcontracts (provided these indirect costs are not included in the loaded hourly rate). As a result, T&M and LH contracts for non-commercial items are generally subject to the provisions of FAR Part 31 and the negotiation of final indirect rates. Since commercial item contracts are not subject to FAR Part 31 and final indirect rates, the Councils have discussed the possibility of using a predetermined rate not subject to any audit and adjustment. However, concerns were raised that this would violate the prohibition on cost plus a percentage of cost (CPPC) contracting if the factor is any amount greater than the actual overhead rate the contractor incurs. As a result, the alternate payment provision provides for payment of the direct costs of material or subcontracts only and does not allow for the application and payment of separate indirect rates for materials and subcontracts.
Finally, the alternate clause applies the Prompt Payment Act to T&M and LH contracts, thus maintaining the application of the Act to commercial items acquisitions.
•
•
3.
The need for potential amendments to the current CAS exemption for commercial items is being considered. Temporary waivers are subject to approval by the CAS Board. Permanent exemptions are subject to the regulatory promulgation process and are codified in 48 CFR Chapter 99. No changes to FAR 12.214 are reflected in the draft amendment that is being published with this notice. However, FAR 12.214 will be revised to reflect any actions that are taken by the CAS Board. Any public comments addressing CAS will be provided to the CAS Board for consideration.
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 10, 12, 16, and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 10, 12, 16, and 52 is revised to read as follows:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 2.101 in paragraph (b) in the definition “Commercial item”, by removing the second sentence of the introductory text of paragraph (6).
3. Amend section 10.001 in paragraph (a)(3)(iv) by adding “type of contract,” before the word “terms”.
4. Amend section 10.002 by revising paragraph (b)(1)(iii) to read as follows:
(b) * * *
(1) * * *
(iii) Customary practices, including warranty, buyer financing, discounts, contract type considering the nature and risk associated with the requirement, etc., under which commercial sales of the products or services are made;
5. Revise section 12.207 to read as follows:
(a) Except as provided in paragraph (b) of this section, agencies shall use firm-fixed-price contracts or fixed-price contracts with economic price adjustment for the acquisition of commercial items.
(b)(1) A time-and-materials contract or labor-hour contract (see Subpart 16.6) may be used for the acquisition of commercial services when—
(i) The service is in a category of commercial service identified in paragraph (b)(2) of this section;
(ii) The service is acquired under a contract awarded using competitive procedures; and
(iii) The contracting officer—
(A) Executes a determination and findings (D&F) for the contract, in accordance with paragraph (b)(3) of this section (but see paragraph (c) of this section for indefinite-delivery contracts), that no other contract type authorized by this subpart is suitable;
(B) Includes a ceiling price in the contract or order that the contractor exceeds at its own risk; and
(C) Authorizes any subsequent change in the ceiling price only upon a determination, documented in the contract file, that it is in the best interest of the procuring agency to change the ceiling price.
(2) The following categories of services may be purchased using a time-and-materials or labor-hour contract:
(i) Commercial services procured for support of a commercial item as defined in paragraph (5) of the “commercial item” definition at 2.101.
(ii) Any other category of commercial services that is identified by the Administrator of the Office of Federal Procurement Policy (OFPP) on the basis that—
(A) The commercial services in such category are of a type of commercial services that are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and
(B) It would be in the best interests of the Federal Government to authorize use of time-and-materials or labor-hour contracts for purchases of the commercial services in such category.
(3) Each D&F required by (b)(1)(iii)(A) shall contain sufficient facts and rationale to justify that no other contract type authorized by this part is suitable. At a minimum, the D&F shall—
(i) Include a description of the market research conducted (see 10.002(e));
(ii)(A) Establish that it is not possible at the time of placing the contract or order to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of certainty; or
(B) If work is sufficiently understood to allow for pricing on a fixed-price basis, explain why fixed pricing would unnecessarily inflate the Government's costs or impose unreasonable risk on the contractor; and
(iii) Establish that the requirement has been structured to minimize the use of T&M and LH contracts to the maximum extent practicable (
(c)(1) Indefinite-delivery contracts (see Subpart 16.5) may be used when—
(i) The prices are established based on a firm-fixed-price or fixed-price with economic price adjustment; or
(ii) Rates are established for commercial services acquired on a time-and-materials or labor-hour basis.
(2) When an indefinite-delivery contract is awarded with services priced on a time-and-materials or labor-hour
(3) If an indefinite-delivery contract only allows for the issuance of orders on a time-and-materials or labor-hour basis, the D&F required by paragraph (b)(3) of this section shall be executed to support the basic contract and shall also explain why providing for an alternative firm-fixed-price or fixed-price with economic price adjustment pricing structure is not practicable. The D&F for this contract shall be approved one level above the contracting officer.
(d) The contract types authorized by this subpart may be used in conjunction with an award fee and performance or delivery incentives when the award fee or incentive is based solely on factors other than cost (see 16.202-1 and 16.203-1).
(e) Use of any contract type other than those authorized by this subpart to acquire commercial items is prohibited.
6. Add section 12.216 to read as follows:
When a time-and-materials or labor-hour contract is awarded pursuant to 12.207(b), Alternate I to 52.212-4 is used. Alternate I includes a subcontract consent provision, which requires the contractor to obtain the contracting officer's consent prior to awarding certain subcontracts. The contracting officer must identify, in an addendum to the clause, subcontracts evaluated during negotiation, any other subcontracts requiring consent, and any exceptions to the standard consent requirements when a contractor does not have an approved purchasing system. The contracting officer shall consider the risk, complexity, and dollar value of anticipated subcontracts when determining the consent requirements.
7. Amend section 12.301 in paragraph (b)(3) by adding a new second sentence to read as follows:
(b) * * *
(3) * * * Use this clause with its Alternate I when a time-and-materials or labor-hour contract will be awarded. * * *
8. Amend section 12.403 in paragraph (d)(1) by revising paragraph (d)(1)(i);, redesignating paragraph (d)(1)(ii) as (d)(1)(iii); and adding a new paragraph (d)(1)(ii) to read as follows:
(d) * * *
(1) * * *
(i) The percentage of the contract price reflecting the percentage of the work performed prior to the notice of the termination for fixed price or fixed price with economic price adjustment contracts; or
(ii) An amount for direct labor hours (as defined in the Schedule of the contract) determined by multiplying the number of direct labor hours expended before the effective date of termination by the hourly rate(s) in the Schedule; and
9. Amend section 16.601 by adding a sentence to the end of the introductory text of paragraph (b) to read as follows:
(b) * * * See 12.207(b) for the use of time-and-material contracts for certain commercial services.
10. Amend section 16.602 by adding a sentence to the end of the paragraph to read as follows:
* * * See 12.207(b) for the use of labor-hour contracts for certain commercial services.
11. Amend section 52.212-4 by revising the date of the clause; adding a new fourth sentence to the introductory text of paragraph (a) of the clause; and adding Alternate I to read as follows:
(a) * * * If repair/replacement or reperformance will not correct the defects or is not possible, the Government may require the Contractor to ensure that future performance conforms to contract requirements and may seek consideration for acceptance of nonconforming supplies or services. * * *
(a)
(1) Within a reasonable time after the defect was discovered or should have been discovered; and
(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.
(i)
(i)
(B) Invoices may be submitted once each month (or at more frequent intervals, if approved by the Contracting Officer) to the Contracting Officer or designee. When requested by the Contracting Officer, the Contractor shall substantiate invoices by evidence of individual daily job timecards or other substantiation specified in the contract.
(C) Unless the Schedule prescribes otherwise, the hourly rates in the Schedule shall not be varied by virtue of the Contractor having performed work on an overtime basis. If no overtime rates are provided in the Schedule and overtime work is approved in advance by the Contracting Officer, overtime rates shall be negotiated. Failure to agree upon these overtime rates shall be treated as a dispute under the Disputes clause of this contract. If the Schedule provides rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime is approved by the Contracting Officer.
(ii)
(B) The Government will reimburse the Contractor for the cost of direct materials provided such costs are consistent with paragraph (i)(1)(ii)(C) and the Contractor—
(
(
(
(
(C) To the extent able, the Contractor shall—
(
(
(D) If the nature of the work to be performed requires the Contractor to furnish material that the Contractor regularly sells to the general public in the normal course of business, the price to be paid for such material, notwithstanding the other requirements of this paragraph (i)(1)(ii), shall be on the basis of an established catalog or list price, in effect when the material is furnished, less all applicable discounts to the Government, provided that in no event shall such price be in excess of the Contractor's sales price to its most favored customer for the same item in like quantity, or the current market price, whichever is lower.
(iii)
(A) In accordance with the terms and conditions of the subcontract; and
(B) Ordinarily within 30 days of the submission of the Contractor's payment request to the Government.
(iv)
(v)
(2)
(i) For labor hours, when the Contracting Officer has required timecards as substantiation for payment—
(A) The original timecards;
(B) The Contractor's timekeeping procedures;
(C) Contractor reports that show the distribution of labor between jobs or contracts; and
(D) Employees whose time has been included in any invoice for the purpose of verifying that these employees have worked the hours shown on the invoices.
(ii) For material costs—
(A) Any invoices substantiating direct material costs; and
(B) Any documents supporting payment of those invoices.
(iii) For subcontract costs—
(A) The subcontract agreement;
(B) Any invoices submitted by the subcontractor; and
(C) Any documents supporting payment of those invoices.
(3)
(ii) Upon receipt and approval of the invoice designated by the Contractor as the “completion invoice” and substantiating material, and upon compliance by the Contractor with all terms of this contract, any outstanding balances shall be paid within 30 days, unless the parties agree otherwise. The completion invoice, and substantiating material, shall be submitted by the Contractor as promptly as practicable following completion of the work under this contract, but in no event later than 1 year (or such longer period as the Contracting Officer may approve in writing) from the date of completion.
(4)
(i) Specified claims in stated amounts, or in estimated amounts if the amounts are not susceptible to exact statement by the Contractor.
(ii) Claims, together with reasonable incidental expenses, based upon the liabilities of the Contractor to third parties arising out of performing this contract, that are not known to the Contractor on the date of the execution of the release, and of which the Contractor gives notice in writing to the Contracting Officer not more than 6 years after the date of the release or the date of any notice to the Contractor that the Government is prepared to make final payment, whichever is earlier.
(iii) Claims for reimbursement of costs (other than expenses of the Contractor by
(5)
(6)
(7)
(8)
(l)
(u)
(2) If the Contractor has an approved purchasing system, the Contractor shall obtain the Contracting Officer's written consent only before placing subcontracts identified in an addendum to this clause.
(3) If the Contractor does not have an approved purchasing system, consent to subcontract is required for any subcontract that—
(i) Is of the cost-reimbursement, time-and-materials, or labor-hour type; or
(ii) Is fixed-price and exceeds—
(A) For a contract awarded by the Department of Defense, the Coast Guard, or the National Aeronautics and Space Administration, the greater of the simplified acquisition threshold or 5 percent of the total estimated cost of the contract; or
(B) For a contract awarded by a civilian agency other than the Coast Guard and the National Aeronautics and Space Administration, either the simplified acquisition threshold or 5 percent of the total estimated cost of the contract.
(iii) Exceptions to this requirement may be as specified by the Contracting Officer in an addendum to this clause.
(4) The Contractor shall notify the Contracting Officer reasonably in advance of placing any subcontract or modification thereof for which consent is required under paragraph (u)(2) or (u)(3) of this clause, including the following information:
(i) A description of the supplies or services to be subcontracted.
(ii) Identification of the type of subcontract to be used.
(iii) Identification of the proposed subcontractor.
(iv) Extent of competition or basis for determining price reasonableness.
(v) The proposed subcontract amount.
(vi) If a time-and-materials or labor-hour subcontract, a list of the labor categories, corresponding labor rates, and estimated hours.
(5) The Contractor is not required to notify the Contracting Officer in advance of entering into any subcontract for which consent is not required under paragraph (u)(2) or (u)(3) of this clause.
(6) Unless the consent or approval specifically provides otherwise, neither consent by the Contracting Officer to any subcontract nor approval of the Contractor's purchasing system shall constitute a determination—
(i) Of the acceptability of any subcontract terms or conditions, or
(ii) Relieve the Contractor of any responsibility for performing this contract.
(7) No subcontract or modification thereof placed under this contract shall provide for payment on a cost-plus-a-percentage-of-cost basis, and any fee payable under cost-reimbursement type subcontracts shall not exceed the fee limitations in FAR 15.404-4(c)(4)(i).
(8) The Contractor shall give the Contracting Officer immediate written notice of any action or suit filed and prompt notice of any claim made against the Contractor by any subcontractor or vendor that, in the opinion of the Contractor, may result in litigation related in any way to this contract, with respect to which the Contractor may be entitled to reimbursement from the Government.
(9) Paragraphs (u)(2) and (u)(3) of this clause do not apply to the subcontracts, which were agreed to during negotiations, as set forth in an addendum to this clause.
(10) If the Contractor enters into any subcontract that requires consent without obtaining such consent, the Government shall not be liable for any costs incurred under that subcontract prior to the date the Contractor obtains the required consent. Any payment of subcontract costs incurred prior to the date the consent was obtained shall be at the sole discretion of the Government.
Transportation Security Administration (TSA), Department of Homeland Security (DHS).
Interim final rule; request for comments.
In response to recent statutory requirements, the Transportation Security Administration is requiring flight schools to notify TSA when aliens and other individuals designated by TSA apply for flight training. TSA is establishing standards relating to the security threat assessment process that TSA will conduct to determine whether such individuals are a threat to aviation or national security, and thus prohibited from receiving flight training. In addition, TSA is establishing a fee to cover a portion of the costs of the security threat assessments that TSA will perform under this rule. Finally, TSA is establishing standards relating to security awareness training for certain flight school employees. These requirements will help ensure that individuals who intend to use aircraft to perform terrorist attacks in the U.S. do not obtain flight training that would enable them to do so. These requirements also will improve security at flight schools.
You may submit comments, identified by the TSA docket number to this rulemaking, using any one of the following methods:
You also may submit comments through the Federal eRulemaking portal at
Comments that include trade secrets, confidential commercial or financial information, or sensitive security information (SSI) should not be submitted to the public regulatory docket. Please submit such comments separately from other comments on the rule. Comments containing trade secrets, confidential commercial or financial information, or SSI should be appropriately marked as containing such information and submitted by mail to the individual(s) listed in
See
As required by Section 612 of Vision 100—Century of Aviation Reauthorization Act,
Comments that include trade secrets, confidential commercial or financial information, or SSI should not be submitted to the public regulatory docket. Please submit such comments separately from other comments on the rule. Comments containing this type of information should be appropriately marked and submitted to the address specified in the
With each comment, please include your name and address, identify the docket number at the beginning of your comments, and give the reason for each comment. The most helpful comments reference a specific portion of the rule, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, in person, by mail, or fax as provided under
If you want the TSA to acknowledge receipt of your comments on this rulemaking, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.
Except for comments containing confidential information and SSI, we will file in the public docket all comments we receive, as well as a report summarizing each substantive public contact with TSA personnel concerning this rulemaking. The docket is available for public inspection before and after the comment closing date.
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late to the extent practicable. We may change this rulemaking in light of the comments we receive.
You may obtain an electronic copy using the Internet by—
(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (
(2) Accessing the Government Printing Office's Web page at
(3) Visiting the TSA's Law and Policy Web page at
In addition, copies are available by writing or calling the individual in the
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information or advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the persons listed in the
This action is being taken without providing the opportunity for prior notice and public comment. Section 612 requires TSA to promulgate an interim final rule (IFR) implementing the requirements of Section 612, including the fee provisions, not later than 60 days after the enactment of Vision 100. See the Background section below for a more detailed description of the Section 612 requirements.
TSA also believes there is good cause under Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553) for issuing an interim final rule. Section 553(b) of the APA authorizes agencies to dispense with certain notice procedures for rules when they find “good cause” to do so. The requirements of notice and opportunity for comment do not apply when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”
Section 612 of Vision 100—Century of Aviation Reauthorization Act prohibits a flight school from providing flight training to aliens or other individuals designated by the Secretary of Homeland Security (referred to hereinafter as “candidates”), unless the candidate has first provided the Secretary with certain identifying information, and the Secretary has not determined that the candidate is a threat to aviation or national security. The Department of Justice (DOJ) currently performs this function. However, Section 612 transfers the responsibility for determining whether a candidate poses a threat to aviation or national security from the DOJ to TSA. To ensure that flight schools may continue to provide flight training only to candidates who do not pose a threat to aviation security, TSA must issue this rulemaking as quickly as possible. Although this regulation would prohibit flight schools from training aliens until the TSA security threat assessment program takes effect, this prohibition will not be known until this rule is issued.
TSA notes that the DOJ final rule, requiring candidates who apply for flight training at U.S. flight schools to be screened, was issued on February 13, 2003. Thus, DOJ has performed this screening function for over a year. In developing this rule, TSA consulted with DOJ to address stakeholder concerns with the DOJ screening program. TSA also met with flight training providers, aircraft manufacturers, and other stakeholders to identify their areas of concern. As a result, TSA's issuance of this interim final rule is not likely to have significant adverse impacts on the regulated community.
For these reasons, TSA finds that notice and public comment to this final rule are impracticable, unnecessary, and contrary to the public interest. However, TSA is requesting public comments on all aspects of the rule. If, based upon information provided in public comments, TSA determines that changes to the rule are necessary to address transportation security more effectively, or in a less burdensome but equally effective manner, the agency will not hesitate to make such changes.
This IFR will take effect upon publication in the
The DOJ will stop accepting completed applications from candidates under its rule on September 28, 2004, and thereafter will not accept any further training applications. Section 612 prohibits a flight school from providing flight training to candidates, unless the candidate first provides TSA with certain identifying information, and TSA does not determine that the person is a threat to aviation or national security. Thus, flight schools will be barred from providing flight training to candidates until the IFR establishing the TSA security threat assessment program takes effect. This could have a significant adverse economic impact on flight schools.
Moreover, as noted above, TSA consulted extensively with DOJ to address stakeholder concerns with the DOJ program and met with flight training providers, aircraft manufacturers, and other stakeholders to identify their areas of concern. TSA also is using an application process similar to the DOJ process, including the use of the same Web site for submission of information. Thus, the agency believes that both candidates and flight schools will be able to comply with the requirements of the IFR fairly easily.
In addition, the security benefits of the rule also justify making the rule
Finally, the IFR provides two compliance dates, one for flight training in the operation of aircraft with a maximum certificated takeoff weight of greater than 12,500 pounds and another for flight training in the operation of aircraft with a maximum certificated takeoff weight of 12,500 pounds or less. Flight schools that provide, and individuals who apply for, flight training in the operation of aircraft with a maximum certificated takeoff weight of greater than 12,500 pounds must comply with the requirements of this rule regarding such training beginning October 5, 2004. Flight schools that provide, and individuals who apply for, flight training in the operation of aircraft with a maximum certificated takeoff weight of 12,500 pounds or less must comply with the requirements of this rule regarding such training beginning October 20, 2004. TSA believes that flight schools and individuals who train in smaller aircraft will need additional time to comply with the IFR because they currently are not subject to the DOJ rule, as are flight schools and individuals who train in larger aircraft.
For these reasons, TSA finds good cause for this IFR taking effect upon publication in the
On November 19, 2001, Congress enacted the Aviation and Transportation Security Act (ATSA).
For purposes of Section 113, flight training included in-flight training, training in a simulator, and any other form or aspect of training.
Also, under Section 113 the training provider was required to furnish the Attorney General with the candidate's identification in a form required by the Attorney General. Thus, the Attorney General had the discretion to request a wide variety of information from a candidate in order to determine whether the candidate presented a threat to aviation or national security.
On February 13, 2003, the Department of Justice (DOJ) issued a final rule implementing Section 113 of ATSA.
The DOJ rule requires a provider to submit to DOJ certain identifying information (including fingerprints and financial information) for each alien and other individual designated by the Administrator of TSA
The DOJ rule provides for two types of processing, expedited and non-expedited. Expedited processing is typically completed within 5 to 15 days of receiving all of a candidate's identifying information, while non-expedited processing is typically completed within 45 days of receiving all of a candidate's identifying information (including fingerprints). A candidate is eligible for expedited processing if he or she is part of any of several categories of pilots whom the Attorney General has determined present a minimal additional risk to aviation or national security, including foreign nationals who are current and qualified as a pilot in command, second in command, or flight engineer with respective certificates with ratings recognized by the FAA for aircraft with an MTOW of over 12,500 pounds. If a candidate does not fall into any of these categories, he or she must undergo the non-expedited processing.
Either a provider or a candidate must submit the candidate's identifying
DOJ performs a risk assessment based on the information submitted by the candidate and the provider. If DOJ determines that a candidate does not present a risk to aviation or national security, DOJ notifies the candidate and/or the provider electronically that the provider may initiate the candidate's training. If DOJ determines that a candidate does present some risk to aviation or national security, DOJ notifies the provider electronically that training is prohibited or must be terminated.
If DOJ does not complete a candidate's risk assessment within the appropriate time period, the provider may initiate the candidate's training. However, if DOJ subsequently determines that the candidate presents a risk to aviation or national security, DOJ notifies the provider, and the provider is required to cease the candidate's training.
On December 12, 2003, Congress enacted Vision 100—Century of Aviation Reauthorization Act. Section 612 of Vision 100 makes several changes to 49 U.S.C. 44939. First, it transfers the threat assessment requirements from the Attorney General to the Secretary of Homeland Security, and requires the Secretary to issue an interim final rule (IFR) implementing Section 612. Second, its applicability is clarified to cover “a person operating as a flight instructor, pilot school, or aviation training center or subject to regulation under this part.”
Third, Section 612 specifies various categories of identifying information the Secretary can require providers to submit for candidates for training in the operation of aircraft with an MTOW of greater than 12,500 pounds. Section 113 of ATSA required a candidate's identifying information to be submitted “in such form as the Attorney General may require.” (49 U.S.C. 44939 (a)(1)). However, Section 612 provides that the Secretary may require the following information to be submitted: the candidate's full name, including any aliases or variations in spelling; passport and visa information; country of citizenship; date of birth; dates of training; and fingerprints.
Fourth, Section 612 reduces the time a provider must wait after submission of a candidate's information before initiating training for a candidate, and thus the time the Secretary has to conduct a threat assessment, from 45 days to 30 days. It also requires the Secretary to establish a process to ensure that the waiting period for certain classes of pilots, such as pilots who are employed by a foreign air carrier that is certified under 14 CFR part 129 and that has a security program approved under 49 CFR part 1546, does not exceed 5 days.
Fifth, Section 612 adds a notification requirement for training in the operation of aircraft with an MTOW of 12,500 pounds or less. It prohibits a flight training provider from providing training in the operation of an aircraft having an MTOW of 12,500 pounds or less to an alien or any other individual specified by the Secretary unless the provider has notified the Secretary that the individual has requested such training and furnished the Secretary with the individual's identification in a form required by the Secretary. It requires a provider to submit a candidate's identifying information “in such form as the Secretary may require.” (49 U.S.C. 44939 (c)).
Sixth, Section 612 authorizes the Secretary to assess a fee for the threat assessment. The fee may not exceed $100 (exclusive of the cost of collecting and transmitting fingerprints from overseas facilities) during fiscal years 2003 and 2004. For fiscal year 2005 and thereafter, the Secretary may adjust the fee to reflect the costs of the threat assessment.
Seventh, Section 612 specifies that the threat assessment requirements do not apply to foreign military pilots who are endorsed by the DOD for flight training in the U.S.
Eighth, Section 612 clarifies the definition of training that was in place under Section 113 of ATSA. Section 113 defined “covered training” as “in-flight training, training in a simulator, and any other form or aspect of training.” (49 U.S.C. 44939(c)). Under Section 612, “training” means “training received from an instructor in an aircraft or aircraft simulator and does not include recurrent training, ground training, or demonstration flights for marketing purposes.”
Finally, Section 612 mandates that the Secretary require flight schools to conduct a security awareness program for flight schools to increase their awareness of suspicious circumstances and activities of individuals enrolling in or attending flight school.
This IFR prohibits a flight school from providing flight training to aliens and other individuals designated by TSA (candidates) unless the flight school or the candidate submits certain information to TSA, the candidate remits the specified fee to TSA, and TSA determines that the candidate is not a threat to aviation or national security. Under the IFR, there are four categories of candidates. Category 1 is for candidates who are not eligible for expedited processing for flight training in the operation of aircraft weighing greater than 12,500 pounds. Category 2 is for candidates who are eligible for expedited processing for flight training in the operation of aircraft weighing greater than 12,500 pounds. Category 3 is for candidates applying for flight training in the operation of aircraft weighing 12,500 pounds or less. Category 4 is for candidates applying for recurrent training. Candidates in Categories 1-3 are required to submit training information, such as the type of training the candidate is requesting, and identifying information, including fingerprints. Flight schools are required to submit similar training and identifying information for candidates in Category 4, but are not required to submit the candidates' fingerprints.
The IFR sets the time periods a flight school must wait for TSA approval before the school may initiate a candidate's training, and thus the time period TSA has to conduct a candidate's threat assessment. For Category 1 candidates (regular processing), a flight school must wait 30 days after TSA receives all the required information, including the specified fee and the candidate's fingerprints. For Category 2 candidates (expedited processing), a flight school must wait 5 days after TSA receives all the required information.
The IFR also establishes a fee for the security threat assessments that TSA will perform and procedures for candidates to remit the fee to TSA. Candidates in Categories 1-3 are required to pay the same $130 fee per application. Candidates in Category 4 are not required to pay a fee.
Finally, the IFR requires flight schools to provide security awareness training for certain flight school employees and establishes standards and criteria such security awareness training programs must meet.
This IFR creates a new part 1552 in title 49 of the Code of Federal Regulations (CFR). Subpart A applies to flight schools, as defined below, and to individuals who apply to obtain flight training. As noted above, Section 612 of Vision 100 specifies that the threat assessment requirements apply only to aliens and other individuals designated by the Secretary, and do not apply to U.S. citizens or nationals or foreign military pilots who are endorsed by the DOD for flight training in the U.S. However, Subpart A requires U.S. citizens and nationals and foreign military pilots endorsed by the DOD to submit certain information that will enable TSA to verify their status as U.S. citizens or nationals or DOD endorsees.
“Alien” is defined as any person not a citizen or national of the United States, as mandated at 8 U.S.C. 1101(a)(3) and in Section 612 of Vision 100.
“National of the United States” is defined as a person who, though not a citizen of the United States, owes permanent allegiance to the United States. This is the definition of the term at 8 U.S.C. 1101.
“Candidate” is defined as an alien or other individual designated by TSA who applies for flight training. It does not include an individual endorsed by the Department of Defense for flight training.
“Day” is defined two different ways, depending on the time period specified in the IFR. If the IFR specifies a time period of less than 11 days, such as the 5-day waiting period for expedited processing candidates, the term “day” means a day from Monday through Friday. This excludes Saturdays and Sundays and Federal holidays, but includes State and local holidays. If the IFR specifies a time period of greater than 11 days, such as the 30-day waiting period for regular processing candidates, the term “day” means a calendar day.
This definition of the term “day” is consistent with the computation of time periods under the Federal Rules of Civil Procedure (FRCP). Rule 6 of the FRCP provides that when a period of time prescribed or allowed under the FRCP is less than 11 days, weekends and legal holidays are excluded from the computation. The legal holidays specified in Rule 6 include New Year's Day, Birthday of Martin Luther King Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States. These are the Federal holidays referred to in the definition of “day” in this IFR.
In addition, in light of the extremely short time periods TSA has to conduct the security threat assessment required under Section 612, TSA believes that days must be limited to business days. Otherwise there could be situations in which the agency would have little time to perform a threat assessment. For example, if a candidate who is eligible for expedited processing under this part (a 5-day waiting period) submits his or her information to TSA on the Friday before a Federal holiday weekend, such as Labor Day or Christmas, TSA essentially would have only 2 days to perform that candidate's security threat assessment because of the weekend and the holiday. TSA believes that Congress, in enacting Section 612, intended TSA to conduct a thorough threat assessment on each alien and other individual designated by TSA who applies for flight training in the U.S. TSA believes that excluding weekends and Federal holidays from the waiting period under this part, which gives the agency sufficient time to conduct a thorough threat assessment, is in accordance with that intent.
“Flight school” is defined as any pilot school, flight training center, air carrier flight training facility, or flight instructor certificated under 14 CFR part 61, 121, 135, 141, or 142; or any other person or entity that provides instruction under 49 U.S.C. Subtitle VII, Part A, in the operation of any aircraft or aircraft simulator. TSA is defining this term broadly to include any individual, as well as any entity, that provides such instruction. This definition also includes any individual or entity located outside of the U.S. that provides such instruction. For example, a flight school located in Canada that provides instruction in the operation of an aircraft or aircraft simulator under 49 U.S.C. Subtitle VII, Part A, that would enable an individual to receive a U.S. Airman's Certificate is subject to this rule.
“Flight training” is defined as instruction received from a flight school in an aircraft, or aircraft simulator. As specified in Section 612 of Vision 100, the term does not include recurrent training, ground training, or demonstration flights for marketing purposes. Section 612 of Vision 100 also provides that the requirements of the TSA program do not apply to a foreign military pilot endorsed by the Department of Defense (DOD). The DOJ rule excludes military flight training provided by DOD, the U.S. Coast Guard, or any entity under contract with DOD or the U.S. Coast Guard, and TSA has retained the exclusion in this IFR.
“Aircraft simulator” is defined as a flight simulator or flight training device, as those terms are defined at 14 CFR 61.1.
“Recurrent training” is defined as periodic training required for employees of certificated aircraft operators under 14 CFR part 61, 121,125, 135, or Subpart K of part 91. Recurrent training programs are established by these operators and approved by the FAA for flight crewmembers to remain proficient in the performance of their duties during common carriage in an aircraft for compensation or hire. For the purposes of this IFR, recurrent training shall pertain only to those candidates who are current and qualified as a pilot in command, second in command, or flight engineer with respective certificates with ratings recognized by the FAA; who are employed by a carrier approved under 14 CFR parts 121, 125, 135, or Subpart K of part 91; and who are applying for training while still current and prior to the end of their grace month as established by their previously documented recurrent
TSA notes that there is no definition of the term “recurrent training” in 14 CFR part 61. Recurrent training is a term specific to flight crewmember training requirements in 14 CFR parts 121, 125 and 135 aircraft operators, and more recently of Fractional Ownership programs regulated under 14 CFR part 91, Subpart K. TSA notes that this definition of “recurrent training” is applicable to both training in aircraft with an MTOW greater than 12,500 pounds and in aircraft with an MTOW of 12,500 pounds or less.
“Ground training” is defined as classroom or computer-based instruction in the operation of aircraft, aircraft systems, or cockpit procedures. This ground training includes the provision of written materials, such as manuals, but does not include instruction in a computer-based aircraft simulator.
“Demonstration flight for marketing purposes” is defined as a flight for the purpose of demonstrating an aircraft's or aircraft simulator's capabilities or characteristics to a potential purchaser, or to an agent of a potential purchaser, of the aircraft or simulator. For example, when an aircraft manufacturer delivers an aircraft to a purchaser, the purchaser typically takes the aircraft for what is known as an acceptance flight so that the purchaser can check for any potential discrepancies. During an acceptance flight, the purchaser may ask the aircraft manufacturer pilot about the operation of some aircraft equipment. Such an acceptance flight is a demonstration flight for marketing purposes, not flight training, under the IFR.
For candidates in Categories 1-3, the IFR generally prohibits a flight school from providing flight training to a candidate unless: (i) the flight school notifies TSA that the candidate has requested such flight training; (ii) the candidate has submitted certain information to TSA; (iii) the flight school has submitted to TSA, in a form and manner acceptable to TSA, a photograph of the candidate taken when the candidate arrives at the flight school for flight training; and (iv) TSA has informed the flight school that the candidate does not pose a threat to aviation or national security. The information submitted by the candidate must be in a form and manner acceptable to TSA. To the extent possible, TSA intends to use the DOJ process for submitting the required information to TSA. TSA intends to continue using the DOJ Web site, with modifications, at
For candidates in Category 4, the flight school must submit certain identifying and training information electronically via the Web site. The flight school also must submit to TSA, in a form and manner acceptable to TSA, a photograph of the candidate taken when the candidate arrives for flight training. TSA is requiring flight schools to submit a photograph of the candidate when the candidate arrives at the flight school for flight training to help ensure that the person who was cleared by TSA is the person who receives the flight training. TSA will check the photograph submitted by the flight school against the photograph of the candidate that is taken when he or she enters the U.S. TSA intends to accept photographs either electronically (digital or scanned photo sent by e-mail) or via fax. The email address and fax numbers where the photographs may be sent will be available on the Web site. TSA requests comment on this requirement.
In addition, for all categories of candidates a flight school will be required to verify that a candidate has applied for training at that school. To ensure that only FAA-certificated flight schools verify this information, flight schools are required to register for initial access to the TSA system through the FAA. Flight schools should register through their local FAA Flight Standards District Office (FSDO). Upon registration, flight schools will be sent (via e-mail) a password to access the system. TSA notes that flight schools that have registered under the DOJ's program will not be required to register again under the TSA program. TSA intends to transfer the information from the DOJ database to the TSA database.
If a flight school makes a willful false statement, or omits a material fact, when submitting the information required under this part, the flight school may be subject to enforcement action. For example, the flight school may be subject to civil penalties under 49 U.S.C. 46301 and 49 CFR 1503. If a candidate makes a knowing and willful false statement, or omits a material fact, when submitting the information required under this part, the candidate may be subject to fine or imprisonment or both under 18 U.S.C. 1001; will be denied approval for flight training under this part; and may be subject to other enforcement action, as appropriate.
TSA considers the flight school's or candidate's electronic signature a sufficient certification that the information provided is truthful and accurate. TSA also considers the electronic signature a sufficient certification for civil penalties under 49 U.S.C. 46301 and 49 CFR 1503, punishment under 18 U.S.C. 1001, and denial of training under this part if the information provided is not truthful and accurate.
TSA notes that the U.S. Department of State requires issuance of an I-20 form by the flight school before issuing the candidate a student visa. Thus, for purposes of expediting a candidate's visa process with the U.S. Department of State, TSA may give a flight school preliminary approval of a candidate so that the school may issue an I-20 form and the candidate may receive his or her visa and begin classroom instruction or other training not subject to the IFR. Preliminary approval from TSA will not impact the Department of State's normal visa procedures. A candidate who receives preliminary approval for flight training from TSA may still be denied a visa by the Department of State.
The preliminary approval will be based on all information required to be submitted for the online application, which is, in turn, based on information required to be submitted under the IFR. Typically, this information will not include the candidate's fingerprints since the fingerprinting process may be time-consuming or logistically impossible for some candidates. Thus, TSA may provide preliminary approval of a candidate to the candidate and the flight school, if the candidate has
Candidates who are not eligible for expedited processing under the IFR (Category 1 candidates) must complete an electronic form, similar to the DOJ's Flight Training Candidate Checks Program (FTCCP) form, that will be available on the Web site at
To confirm that a candidate has applied for flight training at the flight school specified in the candidate's form, TSA will forward the candidate's information to the flight school and ask for verification that the candidate has applied for training at that flight school. The flight school must verify that the candidate has applied for training at that flight school via the Web site
Category 1 candidates must submit the following information: (1) The candidate's full name, including any aliases used, or variations in the spelling of his or her name; (2) a unique student identification number as a means of identifying records concerning the candidate;
This information is either specified under Section 612 of Vision 100, is necessary for TSA to determine the identity of the candidate, or is necessary for TSA to determine what type of training a candidate is applying to receive. TSA believes that the information that is required under the IFR but not specified under Section 612 will aid the agency in performing the threat assessment more quickly and accurately, and thus will result in shorter waiting times and fewer false positives. For example, a candidate's country of birth is not specified under Section 612 but is required under the IFR. In consulting with the DOJ on the assessment it performs, TSA learned that knowledge of a candidate's country of birth greatly aided the DOJ in narrowing its searches of the necessary databases. Because the waiting times under Section 612 are significantly shorter, TSA believes that information that will significantly aid the agency in performing the threat assessment quickly and accurately is necessary. Moreover, TSA believes that the usefulness of this information (
A candidate is required to submit his or her fingerprints to TSA as part of the identification process. A candidate must complete the TSA form and submit it to TSA electronically before the candidate submits his or her fingerprints so that TSA can match the candidate's information with his or her fingerprints.
During the first six months after this IFR takes effect, the candidate's fingerprints must be collected either: (1) By, or under the supervision of, a U.S. Federal, State, or local law enforcement agency; (2) by U.S. Government personnel at a U.S. embassy or consulate that possesses appropriate fingerprint collection equipment and personnel certified to capture fingerprints; or (3) by another entity approved by the Federal Bureau of Investigation (FBI) or TSA, including airports that possess appropriate fingerprint collection equipment and personnel certified to capture fingerprints.
After the first six months, TSA is planning for implementation of a new fingerprint capture process. TSA is working with the U.S. Citizenship and Immigration Services (CIS) to allow candidates to have their fingerprints captured at CIS Application Support Centers (ASC). At least one ASC is located in each State, as well as the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands. TSA is also working with the Department of State to allow candidates to have their fingerprints captured overseas at U.S. embassies and consulates. TSA will inform candidates via the Web site of any changes in the fingerprint capture requirements, including the locations of any ASCs, embassies, or consulates that
The candidate is required to confirm his or her identity to the entity taking his or her fingerprints by showing the entity his or her passport (if a non-resident alien), or resident alien card or U.S. driver's license (if a resident alien). The candidate also must pay for the cost of collecting and transmitting his or her fingerprints to TSA. Those costs are not part of the TSA fee.
Under the IFR, a flight school is prohibited from providing flight training to a Category 1 candidate until TSA has informed the flight school that the candidate does not pose a threat to aviation or national security, or the appropriate waiting period has expired. For Category 1 candidates, the waiting period is 30 days. The waiting period does not begin until TSA has received all the information required under the IFR, including a candidate's fingerprints and the fee required under this part.
Under the IFR, a flight school may initiate a Category 1 candidate's flight training if TSA has not informed the flight school whether the candidate poses a threat to aviation or national security within 30 days. However, if TSA notifies the flight school that a candidate poses a threat to aviation or national security at any time, the flight school must immediately terminate or cancel the candidate's flight training.
Once TSA informs a flight school that a candidate is not a threat to aviation or national security, or the 30-day waiting period has expired, the flight school must initiate the candidate's flight training within 180 days. If the flight school does not initiate the candidate's flight training within 180 days, the flight school or the candidate must resubmit to TSA the information required in the TSA form, including the required fee, but not the candidate's fingerprints. The flight school then must wait until TSA informs the flight school that a candidate is not a threat to aviation or national security or until the appropriate waiting period expires (for Category 1 candidates, 30 days after TSA receives all the required information, including the candidate's fingerprints and the required fee) before initiating the candidate's flight training. As discussed in the section on fees, a candidate is required to submit the required fee each time he or she is required to apply for a TSA security threat assessment.
Section 612 of Vision 100 mandates that certain types of candidates be eligible for expedited processing. These are candidates who: (1) Hold an airman's certificate from a foreign country that is recognized by the FAA or a U.S. military agency, and that permits the candidate to operate a multi-engine aircraft that has a certificated takeoff weight of more than 12,500 pounds; (2) are employed by a foreign air carrier that operates under 14 CFR part 129 and that has a security program approved under 49 CFR part 1546; (3) have unescorted access authority to a secured area of an airport under 49 U.S.C. 44936(a)(1)(A)(ii), 49 CFR 1542.209, or 49 CFR 1544.229; (4) are a flightcrew member who has successfully completed a criminal history records check in accordance with 49 CFR 1544.230; or (5) are part of a class of individuals to which TSA has determined that providing flight training poses a minimal threat to aviation or national security because of the flight training already possessed by that class of individuals.
Under the IFR, candidates who meet any of these criteria are eligible for expedited processing (Category 2 candidates). Category 2 candidates are required to submit the same information required of Category 1 candidates, including their fingerprints. They also are required to submit information that establishes that they are eligible for expedited processing, such as a copy of their security identification display area (SIDA) badge. TSA will specify the information that establishes that a candidate is eligible for expedited processing on the TSA Web site.
TSA believes that it is necessary to require Category 2 candidates to submit their fingerprints to ensure a thorough security threat assessment. The threat assessment consists, in part, of checks of databases that may be searched only through fingerprint information.
Under the IFR, a flight school is prohibited from providing flight training to a candidate until TSA has informed the flight school that the candidate does not pose a threat to aviation or national security, or the appropriate waiting period has expired. For Category 2 candidates, the waiting period is 5 days. The waiting period does not begin until TSA has received all the information required under the IFR, including the candidate's fingerprints and the required fee.
Under the IFR, a flight school may initiate a Category 2 candidate's flight training if TSA has not informed the flight school whether the candidate poses a threat to aviation or national security within 5 days. However, if TSA notifies a flight school that a candidate poses a threat to aviation or national security at any time, the flight school must immediately terminate or cancel the candidate's flight training.
Once TSA informs a flight school that a Category 2 candidate is not a threat to aviation or national security, a flight school must initiate the candidate's flight training within 180 days. If the flight school does not initiate the candidate's flight training within 180 days, the flight school or candidate must resubmit to TSA the information required in the TSA form, including the required fee, but not the candidate's fingerprints. The flight school then must wait until TSA informs the flight school that a candidate is not a threat to aviation or national security, or until 5 days after TSA receives all the required information before initiating the candidate's flight training. As discussed in the section on fees, a candidate is required to submit the required fee each time he or she is required to submit information for a TSA security threat assessment.
The IFR prohibits a flight school from providing flight training in the operation of any aircraft having an MTOW of 12,500 pounds or less to an alien or any other individual specified by TSA unless the flight school notifies TSA that the candidate has requested such flight training, and the candidate submits to TSA certain identifying and training information. The information submitted by the candidate must be in a form and manner acceptable to TSA. TSA intends to use the same form and process for submitting the required information to TSA that the agency will use for flight training for aircraft with an MTOW greater than 12,500 pounds. Thus, the candidate must complete the same TSA form on the TSA Web site and submit the form electronically to TSA. The candidate is required to submit the same information as a candidate for flight training for aircraft with an MTOW greater than 12,500 pounds, including the candidate's fingerprints.
TSA is requiring candidates for this type of flight training to submit the same information, including fingerprints, because an individual who receives flight training on aircraft with an MTOW of 12,500 pounds or less may be familiar enough with aircraft operations to operate an aircraft with an MTOW greater than 12,500 pounds.
Section 612 of Vision 100 only requires flight schools to notify TSA when a candidate applies for flight training for aircraft with an MTOW of 12,500 pounds or less, and to provide TSA with the candidate's identification in such form and manner as TSA may require. Section 612 does not require flight schools to wait for TSA approval before initiating such training for candidates.
However, the IFR does require a flight school to terminate or cancel a Category 3 candidate's flight training immediately if TSA notifies the flight school that the candidate poses a threat to aviation or national security at any time. Although Section 612 does not specifically mandate this, TSA believes such a requirement is necessary to carry out the intent of the statute—preventing individuals who pose a threat to aviation or national security from obtaining flight training, and thus preventing them from conducting terrorist attacks using aircraft.
Under the IFR, a Category 1, 2, or 3 candidate who has received TSA approval for flight training and completes the flight training may take additional flight training without resubmitting his or her fingerprints if he or she submits all the other required information, including the fee. Before beginning the additional training, the candidate must resubmit to TSA the information required in the TSA form,
As mandated by Section 612 of Vision 100, the IFR exempts candidates who apply for recurrent training from the security threat assessment requirements. However, TSA must be able to determine whether a candidate is eligible for recurrent training and thus not subject to the threat assessment requirements. To do that, TSA is requiring a flight school, prior to beginning a Category 4 candidate's recurrent training, to notify TSA that the candidate has requested such recurrent training and submit to TSA the following information: (1) The candidate's full name, including any aliases used by the candidate or variation in the spelling of the candidate's name; (2) any unique student identification number issued by the DOJ or TSA that would help establish a candidate's eligibility for the recurrent training exemption; (3) a copy of the candidate's current, unexpired passport and visa; (4) the candidate's current U.S. pilot certificate, certificate number, and type rating(s); (5) the type of training for which the candidate is applying; (6) the date of the candidate's prior recurrent training, if any, and a copy of the training form documenting that recurrent training; and (7) the dates and location of the candidate's requested training. This information is necessary to establish a candidate's identity and determine whether he or she is applying for recurrent training and thus exempt from the security threat assessment requirements.
As discussed above, “recurrent training” is defined as periodic training required for employees of certificated aircraft operators under 14 CFR parts 121,125, 135, or Subpart K of part 91. Only candidates who apply for such training are exempt from the fingerprinting and security threat assessment requirements under the IFR.
The IFR requires a flight school to submit to TSA the required information before initiating a Category 4 candidate's recurrent training. TSA will notify the flight school via e-mail when the agency has received the required information for a candidate. Once the flight school has received the TSA e-mail, it may initiate the candidate's recurrent training. To ease the application process, as well as TSA's determination as to whether a candidate is applying for recurrent training, TSA intends to monitor candidates using their unique student identification number to make it easier to track candidates who apply for training at different flight schools.
The requirements for Category 4 candidates are applicable both to candidates who apply for recurrent training for aircraft with an MTOW greater than 12,500 pounds and to candidates who apply for recurrent training for aircraft with an MTOW of 12,500 pounds or less.
The threat assessment requirements in the IFR apply to aliens and other individuals designated by TSA. They do not apply to U.S. citizens and nationals or individuals who have been endorsed by the DOD, unless they have been designated by TSA. To ensure that individuals who are not U.S. citizens or nationals or DOD endorsees do not evade the security threat assessment requirements, the IFR requires flight schools to determine whether an individual is a U.S. citizen or national or DOD endorsee.
To establish U.S. citizenship or nationality, an individual must present to the flight school one of the following: (1) A copy of the individual's valid, unexpired U.S. passport; (2) the individual's original or government-
To establish that an individual has been endorsed by the DOD for flight training, the individual must present to the flight school a written statement acceptable to TSA from the DOD attacheé in the individual's country of residence, together with a government-issued picture identification of the individual.
These identification requirements are currently contained in the DOJ rule or required under DOJ procedures. TSA is maintaining these requirements to ensure that individuals who are subject to the IFR do not circumvent the security threat assessment process.
These requirements are applicable both to individuals who apply for flight training for aircraft with an MTOW greater than 12,500 pounds and to individuals who apply for flight training for aircraft with an MTOW of 12,500 pounds or less.
The IFR requires a flight school to maintain the following information for a minimum of 5 years: (1) In the case of an individual who is a U.S. citizen or national, a copy of the candidate's proof of U.S. citizenship or nationality; (2) in the case of an individual who has been endorsed by the DOD for flight training, a copy of the DOD letter and the candidate's identifying information; (3) for all candidates, a copy of all the information required under the IFR for each category of candidate, except for the candidate's fingerprints; (4) a photograph of each candidate taken within one year before the candidate receives flight training subject to this section; (5) a copy of the approval sent by TSA confirming the candidate's eligibility for flight training; and (6) a record of all fees paid to TSA in accordance with this IFR. A flight school must permit persons authorized by TSA or the FAA to inspect these records.
TSA believes that these records are necessary to ensure that flight schools are complying with the requirements of the IFR and for identification and investigative purposes in the event that an individual who receives flight training commits a criminal or terrorist act. In particular, TSA believes that a current photograph of each candidate subject to this IFR would be useful for identification and investigation purposes. TSA notes that a flight school is required to maintain a current photograph of all candidates for flight training, including candidates eligible for expedited processing under the IFR, as well as candidates for recurrent training. A flight school is not required to maintain a current photograph of U.S. citizens or nationals or DOD endorsees.
These requirements are applicable both to individuals who apply for flight training for aircraft with an MTOW greater than 12,500 pounds and to individuals who apply for flight training for aircraft with an MTOW of 12,500 pounds or less.
The IFR provides that a candidate who submits a completed Flight Training Candidate Checks Program (FTCCP) form and fingerprints to the DOJ in accordance with the DOJ rule (28 CFR Part 105) will be processed in accordance with the requirements of the DOJ rule. The requirements include the information submission requirements, risk assessment standards, and notification timelines in the DOJ rule. TSA believes this provision is necessary to ensure the smooth transition of the program from the DOJ to TSA and avoid confusion over to which requirements a candidate is subject and which agency is responsible for performing the threat assessment for a candidate. TSA notes that, to facilitate the transition from the DOJ application process to the TSA application process in an orderly manner, the DOJ will accept completed FTCCP applications validated by a Flight Training Provider up to 5 p.m. Eastern Daylight Savings Time on September 28, 2004, or a later date specified by DOJ and TSA on the Web site at
TSA notes that if TSA and the DOJ specify a date for DOJ later than the compliance dates identified in this rule, individuals and flight schools who comply with 28 CFR part 105 up to that date will be considered to be in compliance with the requirements of this part.
The IFR requires candidates in Categories 1-3 to remit to TSA a fee when they are required under section 1552.3 to submit to TSA the required information for a security threat assessment.
TSA will begin conducting a candidate's security threat assessment when the agency receives all of the information required under the IFR, including the candidate's fingerprints (when required) and the fee. Thus, TSA will incur costs associated with performing the threat assessment immediately. For this reason, TSA will not issue any fee refunds, unless a fee was paid in error, that is, a fee was paid when it was not required.
A candidate must submit the fee each time he or she is required to undergo a security threat assessment under the IFR. For example, if TSA approves a candidate for flight training, but the flight school does not initiate the candidate's training within 180 days of receiving the TSA approval, the IFR requires the candidate to resubmit his or her information to the flight school and TSA. That candidate would be required to submit an additional fee for TSA to conduct another security threat assessment.
The fee is required of candidates in Categories 1-3. TSA notes that Section 612 of Vision 100 authorizes TSA to assess a fee for any investigation under Section 612. As discussed above, Section 612 does not mandate a security threat assessment for candidates for flight training for aircraft weighing 12,500 pounds or less. However, as discussed above, TSA believes such candidates must be subject to the security threat assessment requirements in order to carry out the intent of the statute—preventing individuals who pose a threat to aviation or national security from obtaining flight training, and thus preventing them from conducting terrorist attacks using aircraft. Thus, TSA will perform a security threat assessment on those individuals, and will assess a fee for the threat assessment under Section 612.
Section 612 authorizes TSA to set the fee to reflect the costs of the security threat assessment. As explained in greater detail below, the fee is $130 to reflect the full recurring costs to TSA for performing the security threat assessment.
TSA estimates that there will be 70,000 annual candidate applications for flight training at FAA-approved flight schools. This estimate is comprised of the following:
(a) The number of candidate applications for training on aircraft with an MTOW greater than 12,500 pounds is estimated to be 32,000 annually, which is equivalent to 160,000 for the first five years of the program. This estimate is based on data from the DOJ that indicates the total annual candidate applications for training under the FTCCP for calendar year 2003. While the DOJ did not track the actual number of flight training candidates submitting multiple applications, TSA believes that, on average, candidates will submit two applications per year. This could be due to a candidate applying for subsequent flight training on a different type of aircraft in the same fiscal year or if the flight school does not initiate the candidate's training within 180 days of receiving the TSA approval (both scenarios require re-application under the requirements of the IFR.) Thus, TSA estimates that each year approximately 16,000 candidates will submit an average of two applications each, resulting in 32,000 annual applications for training on aircraft with an MTOW greater than 12,500 pounds.
(b) The number of candidate applications for training on aircraft with an MTOW of 12,500 pounds or less is estimated to be 38,000 annually, which is equivalent to 190,000 for the first five years of the program. This estimate is based on FAA Airman Registry data. However, the FAA does not record the number of certificates issued to foreign nationals. Instead, the FAA records the overall number of certificates issued annually to all persons and the percentage of active non-U.S. citizens holding FAA certificates. The FAA estimates that the annual average of certificates issued to all persons over the last 6 years is 106,000 certificates. The FAA estimates that 18% of these certificates were issued to non-U.S. citizens, which is equivalent to 19,000 certificates. Therefore, TSA estimates that approximately 19,000 candidates will submit requests for this type of flight training each year. TSA believes that each candidate within this population will also submit an average of two requests each year for various reasons, such as a candidate who applies for subsequent flight training in a different type of aircraft in the same fiscal year or a flight school that does not initiate the candidate's training within 180 days of receiving the TSA approval. Thus, TSA estimates the total annual number of applications for flight training on aircraft with an MTOW of 12,500 pounds or less to be 38,000 (19,000 candidates × 2 applications per year).
This section summarizes TSA's estimated costs of completing security threat assessments on candidates who apply for flight training in the U.S. The costs are divided into two main categories: Start-up costs and recurring annual costs. Start-up costs represent the cost of all resources necessary for TSA to establish the program. Recurring costs represent the resources necessary for TSA to perform ongoing security threat assessments on candidates. Recurring operations will begin during fiscal year 2005.
TSA estimates that the total start-up costs will be $3.0 million. The start-up costs include all expenses related to the transition of the program from the DOJ to DHS (specifically TSA). This includes $1.5 million for hardware and software; $471,000 for contract personnel; and $1.0 million for facilities build out. Fees will not recover the start-up costs. See the Costs Estimates table below for additional details.
TSA estimates that the total annual recurring costs will be $9.1 million. The annual recurring cost includes $375,000 for hardware and software; $4.0 million for contract and other personnel; $30,000 Federal employee travel; $250,000 for fee payment processing and $4.4 million for terrorist threat assessment costs.
Based on its population and cost assumptions, TSA has determined that total startup phase costs will be approximately $3.0 million and recurring phase costs will be approximately $9.1 million annually. As TSA will perform the same threat assessments for Category 1-3 candidates, the costs to TSA for each category of candidate are the same.
Section 612 authorizes TSA to adjust the fee to reflect the costs of the security threat assessment. The fee is based on the recurring cost per applicant that TSA incurs to perform the security threat assessment and does not include start-up costs. To calculate this fee, TSA uses the following equation: Annual recurring cost/estimated number of annual threat assessments = annual cost per applicant. The estimated cost per applicant is $130 ($9,087,400/70,000). As the costs for each applicant are the same, the fee will also be the same for each applicant category.
Pursuant to the Chief Financial Officers Act of 1990 and Office of Management and Budget Circular A-25, DHS/TSA will review this fee at least every two years. Upon review, if it is found that the fee is either too high or too low, the amount of the fee will be adjusted accordingly. Since this IFR newly regulates a very dynamic segment of the aviation population (foreign candidates for flight training), and TSA has no prior operating history in performing threat assessments for this population, TSA may need to review program costs earlier than the minimum two-year review period.
There are a variety of options for fingerprint collection and transmission available to candidates. The costs and method of payment for these options will vary per location and will be separate from, and in addition to, the TSA fee. Candidates or flight schools will be required to pay this cost directly to the fingerprint collector, not to TSA. TSA estimates that the maximum cost of collecting a candidate's fingerprints will be $100.
This subpart applies to flight schools, as defined in this part, that provide instruction under 49 U.S.C. Subtitle VII, Part A, in the operation of aircraft or aircraft simulators, and to certain employees of such flight schools.
“Flight school employee” is defined as a flight instructor or ground instructor certificated under 14 CFR part 61, 141, or 142; a chief instructor certificated under 14 CFR part 141; a director of training certificated under 14 CFR part 142; or any other person employed by a flight school, including an independent contractor, who has direct contact with a flight school student. This definition includes an independent or solo flight instructor certificated under 14 CFR part 61. Thus, an independent or solo flight instructor, who would be considered a “flight school” under the definition of that
Section 612 does not provide a definition of flight school employee. However, TSA believes that Section 612 should apply only to those employees who have direct or substantial contact with students, and thus are more likely to observe suspicious behavior, rather than those employees, such as grounds maintenance staff, who may spend little time at a flight school or have no contact with students. TSA also believes that requiring security awareness training for such employees would impose a substantial burden on flight schools while providing little added security. Thus, TSA has limited the definition to employees who have direct contact with a flight school student. This definition includes administrative personnel who accept payment from a flight school student or process a student's paperwork. TSA believes that such personnel are well situated to observe any suspicious behavior or circumstances in a student's payment or identification information.
The IFR requires a flight school to ensure that each of its flight school employees receives both initial and recurrent security awareness training. Current flight school employees, that is those individuals who are flight school employees on September 20, 2004, must receive initial security awareness training within 90 days of the effective date of this rule. Flight school employees hired after September 20, 2004 must receive initial security awareness training within 60 days of being hired. TSA believes that these time periods provide ample time for flight schools to train both current and newly hired employees.
A flight school may use either the initial security awareness training program offered by TSA or an alternative initial training program offered by a third party or designed by the flight school itself. The TSA initial training program will be available electronically on the TSA General Aviation (GA) Web site at
If a flight school decides to use an alternative initial training program, the program must, at a minimum, meet the following criteria. First, it must require active participation by the flight school employee receiving the training. Studies have shown that individuals retain information better when they receive the information in an interactive format than when they receive the information passively (for example, by merely listening to a lecture).
Second, any alternative initial training program must provide situational scenarios that require the employee to assess specific situations and determine appropriate courses of action. For example, the program could give an employee a specific situation or set of circumstances involving behavior by a flight school student and ask the employee if the behavior is suspicious and, if so, what the employee should do in response, such as inform a supervisor, contact the TSA General Aviation Hotline (1-866-GA-SECURE),
Third, any alternative initial training program must enable an employee to identify the proper uniforms and other identification (if any are required at the flight school) for employees at that flight school or other persons authorized to be on the grounds of that flight school. The training also must enable an employee to identify suspicious behavior.
Suspicious behavior may include: excessive or unusual interest in restricted airspace or restricted ground structures, such as repeated requests to fly over nuclear power plants; unusual questions or interest regarding aircraft capabilities; aeronautical knowledge inconsistent with the student's existing airman credentialing; sudden termination of the student's instruction; loitering on the flight school grounds for extended periods of time; and entering “authorized access only” areas without permission.
An alternative program also must enable an employee to identify suspicious circumstances regarding aircraft, including unusual modifications to aircraft, such as the strengthening of landing gear, changes to tail number, stripping the aircraft of seating or equipment; damage to propeller locks or other parts of an aircraft that is inconsistent with the pilot training or aircraft flight log; and dangerous or hazardous cargo loaded into an aircraft.
Fourth, an alternative program must provide an employee with appropriate responses for the employee to make in specific situations. Appropriate responses include: taking no action, if a situation does not warrant action; questioning an individual, if his or her behavior may be considered suspicious; informing a supervisor, if a situation or an individual's behavior warrants further investigation; calling the TSA General Aviation Hotline; or calling local law enforcement, if a situation or an individual's behavior could pose an immediate threat. Thus, an alternative program, in complying with these requirements and the interactive requirement discussed above, could give an employee a specific situation, ask the employee to respond, and then provide the appropriate response (or responses, if more than one response could be appropriate) and some discussion of why that response is appropriate.
Finally, an alternative training program must contain any other information relevant to security measures or procedures at the flight school, including applicable information in the TSA Information Publication “Security Guidelines for General Aviation Airports.”
TSA notes that many flight schools currently conduct some form of security awareness training for their employees. If the training used by a flight school meets the criteria for an alternative initial security awareness training program in this IFR, and the flight school has documentation that meets the recordkeeping requirements in this IFR for each employee who has received such training, TSA may consider the flight school to be in compliance with the initial security awareness training requirements of the IFR. However, the flight school still must comply with the recurrent training requirements in the
TSA notes that a flight school may have its employees receive computer-based security awareness training on an individual basis or may use an instructor to conduct the training to a group of employees. If a flight school elects to use an instructor to conduct the training for its employees, the flight school must first ensure that the instructor has successfully completed the initial flight school security awareness training program offered by TSA or an alternative initial training program that meets the criteria discussed above.
The IFR requires a flight school to ensure that each flight school employee receives recurrent security awareness training each year in the same month as the month in which the flight school employee received initial security awareness training. For example, if a flight school employee received initial security awareness training in April 2004, he or she must received recurrent security awareness training in April 2005.
TSA will not provide a recurrent security awareness training program.
A recurrent training program also must contain any new threats posed by or incidents involving general aviation (GA) aircraft. TSA will post information regarding general threats posed by GA aircraft and major incidents involving GA aircraft on the TSA GA Web site at
The IFR requires a flight school to issue a document to each flight school employee when the employee receives initial security awareness training and each time the employee receives recurrent security awareness training. This requirement will enable TSA inspectors to verify that each flight school employee has received the required security awareness training each year.
The document issued to the employee must contain the employee's name and a distinct identification number for the employee to enable both the flight school and TSA inspectors to track each employee's security awareness training. The document also must indicate the date on which the flight school employee received the security awareness training; the name of the instructor who conducted the training, if an instructor conducted the training; a statement certifying that the flight school employee received the security awareness training; the type of training received, whether initial or recurrent; and if the flight school uses an alternative initial training program, a statement certifying that the program meets the criteria in 49 CFR 1552.23 (c). Finally, the flight school employee and an authorized official of the flight school must sign the document.
The IFR also requires a flight school to establish and maintain the following records for one year after an individual no longer is a flight school employee: (1) a copy of the document issued to the employee when he or she received initial training and each time he or she received recurrent training; (2) a copy of the alternative initial security awareness training program, if the flight school used in the past or currently uses an alternative program instead of the TSA program.
Finally, the IFR requires a flight school to allow officials authorized by TSA and the FAA to inspect the records required under this section. TSA officials will be conducting inspections of flight schools to ensure that they are complying with this rule. Flight schools that are not in compliance may be subject to civil penalties under 49 U.S.C. 46301 and 49 CFR part 1503.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
The agency is soliciting comments to—
(1) Evaluate whether the information requirement 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;
(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, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Individuals and organizations may submit comments on the information collection requirement by November 19, 2004, and should direct them via fax to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: DHS-TSA Desk Officer, at (202) 395-5806. Comments to OMB are most useful if received within 30 days of publication.
As protection provided by the Paperwork Reduction Act, as amended, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this information collection is 1652-0021.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to OMB review and to the requirements of the Executive Order. This rulemaking is not an economically significant regulatory action as defined by Executive Order 12866. The rulemaking does not meet the threshold of the $100 million effect on the economy annually. However, the action may be considered significant because there is significant public interest in security since the events of September 11, 2001.
This rulemaking does not constitute a barrier to international trade, and does not impose an unfunded mandate on state, local, or tribal governments, or the private sector. These analyses, which are summarized below, are discussed in greater detail in the regulatory evaluation, which will be placed in the docket of this rulemaking. TSA welcomes comments on the costs analyzed or any additional costs that could be considered.
The IFR will impose costs on flight training providers for collecting and transmitting identifying information for flight training candidates, providing security awareness training for employees, and retaining and maintaining information on flight training candidates and records on security awareness training. The IFR also will impose a fee on flight training candidates to defray the costs of security threat assessments that TSA will perform. In addition, flight school candidates will incur the cost of fingerprinting and opportunity costs in providing the required information. TSA will incur costs for transferring and modifying the DOJ's FTCCP system, and for conducting security threat assessments.
The IFR does not impose any new costs for requirements that already exist under the DOJ rule. Because candidates for flight training in the operation of aircraft with MTOW of 12,500 pounds or greater were subject to the DOJ rule, the IFR will only impose costs (other than the cost of the TSA fee) on candidates who were not subject to the DOJ rule, that is candidates for flight training in the operation of aircraft with an MTOW of less than 12,500 pounds.
TSA does not expect a significant impact on the overall demand for U.S. flight school training as a result of the IFR. The IFR only impacts alien candidates for U.S. flight training, and the population of alien candidates is small relative to the total number of U.S. flight students. Costs will increase for alien flight school candidates. However, TSA assumes that the impact on demand will not be significant because U.S. flight training is considered to be the global standard, and it is comparatively less expensive to obtain a pilot's certificate in the U.S. than in most foreign countries. This assumption is discussed further in the full regulatory evaluation.
TSA estimates the total quantified costs at $180.2 million undiscounted over a 10-year period and an average of $18.0 million annually. When discounted at 7 percent, the total quantified cost impact is $134.0 million over a 10-year period, and $13.4 million annually. The total costs of compliance are summarized in the table below.
The primary benefit of the IFR will be increased protection of U.S. citizens and property from acts of terrorism. The requirements of this IFR decrease the chance that a flight school student who poses a security threat will be able to receive flight training from a U.S. flight school in the operation of aircraft that could be used in an act of terrorism. The IFR will provide greater security benefits than the DOJ rule because it applies to aliens seeking training on smaller aircraft, and it also improves security at flight schools through the requirement for security awareness training.
It is difficult to predict the probability of a terrorist attack. Even when the probability is low, the impact of such an attack can be devastating. As illustrated by the September 11, 2001 terrorist attacks, loss of life and property damage could be tremendous. Another possible impact of a terrorist attack could be an economic shock or slowdown. Although not quantified, the avoidance of such impacts is a major benefit of the enhanced security of the IFR.
The IFR will provide the American people with added protection from terrorist attempts to become proficient in the operation of aircraft for the purpose of attacking American persons and property. The costs to achieve the level of security protection have been measured and are estimated at $134 million over the next 10 years when discounted at 7 percent. While it is impossible to quantify the benefits of the increased security that is expected to be achieved by the requirements established in this IFR, TSA believes that the actions that this IFR prescribes will achieve the goals anticipated by the legislation that established the requirement. TSA believes reducing opportunities for terrorists to attain the ability to use aircraft as weapons against America and its allies justifies the investment that this IFR requires. Moreover, this IFR strives to achieve these goals in the least costly manner possible.
The Regulatory Flexibility Act (RFA) of 1980, as amended, was enacted by Congress to ensure that small entities (small businesses, small not-for-profit organizations, and small governmental jurisdictions) are not unnecessarily or disproportionately burdened by Federal regulations. The RFA requires agencies to review rules to determine if they have “a significant economic impact on a substantial number of small entities.” However, Section 603(a) of the Regulatory Flexibility Act requires that agencies prepare and make available for public comment an initial regulatory flexibility analysis whenever the agency is required by law to publish a general notice of proposed rulemaking. Section 612 of Vision 100—Century of Aviation Reauthorization Act requires TSA to promulgate an interim final rule implementing the requirements of Section 612. Accordingly, TSA has not prepared an initial regulatory flexibility analysis for this rule.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written assessment is needed, section 205 of the UMRA generally requires TSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objective of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows TSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation of the reasons that alternative was not adopted.
The UMRA does not apply to a regulatory action in which no notice of proposed rulemaking is published, as is the case in this rulemaking action. Accordingly, TSA has not prepared a statement under the UMRA.
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effects of this rule and has determined that the rule will impose the same costs on domestic and
Executive Order 13132 requires TSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
We have analyzed this rule under the principles and criteria of Executive Order 13132. We have determined that this action 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, and therefore will not have federalism implications.
TSA has reviewed this rule for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has determined that this action would not have a significant effect on the human environment.
TSA has assessed the energy impact of this rule in accordance with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.
Aircraft, Aliens, Alien pilots, Aviation safety, Education facilities, Fees, Flight schools, Flight school employees, Flight training, Reporting and recordkeeping requirements, Security awareness training, Security measures, Security threat assessment.
49 U.S.C. 114, 44939.
(a)
(b)
This section describes the procedures a flight school must follow before providing flight training.
(a)
(1) The flight school has first notified TSA that the candidate has requested such flight training.
(2) The candidate has submitted to TSA, in a form and manner acceptable to TSA, the following:
(i) The candidate's full name, including any aliases used by the candidate or variations in the spelling of the candidate's name;
(ii) A unique candidate identification number created by TSA;
(iii) A copy of the candidate's current, unexpired passport and visa;
(iv) The candidate's passport and visa information, including all current and previous passports and visas held by the candidate and all the information necessary to obtain a passport and visa;
(v) The candidate's country of birth, current country or countries of citizenship, and each previous country of citizenship, if any;
(vi) The candidate's actual date of birth or, if the candidate does not know
(vii) The candidate's requested dates of training and the location of the training;
(viii) The type of training for which the candidate is applying, including the aircraft type rating the candidate would be eligible to obtain upon completion of the training;
(ix) The candidate's current U.S. pilot certificate, certificate number, and type rating, if any;
(x) Except as provided in paragraph (k) of this section, the candidate's fingerprints, in accordance with paragraph (f) of this section;
(xi) The candidate's current address and phone number and each address for the 5 years prior to the date of the candidate's application;
(xii) The candidate's gender; and
(xiii) Any fee required under this part.
(3) The flight school has submitted to TSA, in a form and manner acceptable to TSA, a photograph of the candidate taken when the candidate arrives at the flight school for flight training.
(4) TSA has informed the flight school that the candidate does not pose a threat to aviation or national security, or more than 30 days have elapsed since TSA received all of the information specified in paragraph (a)(2) of this section.
(5) The flight school begins the candidate's flight training within 180 days of either event specified in paragraph (a)(4) of this section.
(b)
(i) The flight school has first notified TSA that the candidate has requested such flight training.
(ii) The candidate has submitted to TSA, in a form and manner acceptable to TSA:
(A) The information and fee required under paragraph (a)(2) of this section; and
(B) The reason the candidate is eligible for expedited processing under paragraph (b)(2) of this section and information that establishes that the candidate is eligible for expedited processing.
(iii) The flight school has submitted to TSA, in a form and manner acceptable to TSA, a photograph of the candidate taken when the candidate arrives at the flight school for flight training.
(iv) TSA has informed the flight school that the candidate does not pose a threat to aviation or national security or more than 5 days have elapsed since TSA received all of the information specified in paragraph (a)(2) of this section.
(v) The flight school begins the candidate's flight training within 180 days of either event specified in paragraph (b)(1)(iv) of this section.
(2) A candidate is eligible for expedited processing if he or she—
(i) Holds an airman's certificate from a foreign country that is recognized by the Federal Aviation Administration or a military agency of the United States, and that permits the candidate to operate a multi-engine aircraft that has a certificated takeoff weight of more than 12,500 pounds;
(ii) Is employed by a foreign air carrier that operates under 14 CFR part 129 and has a security program approved under 49 CFR part 1546;
(iii) Has unescorted access authority to a secured area of an airport under 49 U.S.C. 44936(a)(1)(A)(ii), 49 CFR 1542.209, or 49 CFR 1544.229;
(iv) Is a flightcrew member who has successfully completed a criminal history records check in accordance with 49 CFR 1544.230; or
(v) Is part of a class of individuals that TSA has determined poses a minimal threat to aviation or national security because of the flight training already possessed by that class of individuals.
(c)
(1) The flight school has first notified TSA that the candidate has requested such flight training.
(2) The candidate has submitted to TSA, in a form and manner acceptable to TSA:
(i) The information required under paragraph (a)(2) of this section; and
(ii) Any other information required by TSA.
(3) The flight school has submitted to TSA, in a form and manner acceptable to TSA, a photograph of the candidate taken when the candidate arrives at the flight school for flight training.
(4) The flight school begins the candidate's flight training within 180 days of the date the candidate submitted the information required under paragraph (a)(2) of this section to TSA.
(d)
(1) Notify TSA that the candidate has requested such recurrent training; and
(2) Submit to TSA, in a form and manner acceptable to TSA:
(i) The candidate's full name, including any aliases used by the candidate or variations in the spelling of the candidate's name;
(ii) Any unique student identification number issued to the candidate by the Department of Justice or TSA;
(iii) A copy of the candidate's current, unexpired passport and visa;
(iv) The candidate's current U.S. pilot certificate, certificate number, and type rating(s);
(v) The type of training for which the candidate is applying;
(vi) The date of the candidate's prior recurrent training, if any, and a copy of the training form documenting that recurrent training;
(vii) The candidate's requested dates of training; and
(viii) A photograph of the candidate taken when the candidate arrives at the flight school for flight training.
(e)
(f)
(i) By United States Government personnel at a United States embassy or consulate; or
(ii) By another entity approved by TSA.
(2) A candidate must confirm his or her identity to the individual or agency collecting his or her fingerprints under paragraph (f)(1) of this section by providing the individual or agency his or her:
(i) Passport;
(ii) Resident alien card; or
(iii) U.S. driver's license.
(3) A candidate must pay any fee imposed by the agency taking his or her fingerprints.
(g)
(i) Subject to fine or imprisonment or both under 18 U.S.C. 1001;
(ii) Denied approval for flight training under this section; and
(iii) Subject to other enforcement action, as appropriate.
(2)
(h)
(1)
(i) Valid, unexpired United States passport;
(ii) Original or government-issued certified birth certificate of the United States, American Samoa, or Swains Island, together with a government-issued picture identification of the individual;
(iii) Original United States naturalization certificate with raised seal, or a Certificate of Naturalization issued by the U.S. Citizenship and Immigration Services (USCIS) or the U.S. Immigration and Naturalization Service (INS) (Form N-550 or Form N-570), together with a government-issued picture identification of the individual;
(iv) Original certification of birth abroad with raised seal, U.S. Department of State Form FS-545, or U.S. Department of State Form DS-1350, together with a government-issued picture identification of the individual;
(v) Original certificate of United States citizenship with raised seal, a Certificate of United States Citizenship issued by the USCIS or INS (Form N-560 or Form N-561), or a Certificate of Repatriation issued by the USCIS or INS (Form N-581), together with a government-issued picture identification of the individual; or
(vi) In the case of flight training provided to a Federal employee (including military personnel) pursuant to a contract between a Federal agency and a flight school, the agency's written certification as to its employee's United States citizenship or nationality, together with the employee's government-issued credentials or other Federally-issued picture identification.
(2)
(i)
(1) Maintain the following information for a minimum of 5 years:
(i) For each candidate:
(A) A copy of the photograph required under paragraph (a)(3), (b)(1)(iii), (c)(3), or (d)(2)(viii) of this section; and
(B) A copy of the approval sent by TSA confirming the candidate's eligibility for flight training.
(ii) For a Category 1, Category 2, or Category 3 candidate, a copy of the information required under paragraph (a)(2) of this section, except the information in paragraph (a)(2)(x).
(iii) For a Category 4 candidate, a copy of the information required under paragraph (d)(2) of this section.
(iv) For an individual who is a United States citizen or national, a copy of the information required under paragraph (h)(1) of this section.
(v) For an individual who has been endorsed by the U.S. Department of Defense for flight training, a copy of the information required under paragraph (h)(2) of this section.
(vi) A record of all fees paid to TSA in accordance with this part.
(2) Permit TSA and the Federal Aviation Administration to inspect the records required by paragraph (i)(1) of this section during reasonable business hours.
(j)
(k)
(i) Submits all other information required in paragraph (a)(2) of this section, including the fee; and
(ii) Waits for TSA approval or until the applicable waiting period expires before initiating the additional flight training.
(2) A Category 1, 2, or 3 candidate who is approved for flight training by TSA, but does not initiate that flight training within 180 days, may reapply for flight training without submitting fingerprints as specified in paragraph (a)(2)(x) of this section if the candidate submits all other information required in paragraph (a)(2) of this section, including the fee.
(a)
(b)
(2) TSA will not issue any fee refunds, unless a fee was paid in error.
(a)
(b)
(a)
(1) Each of its flight school employees receives initial and recurrent security awareness training in accordance with this subpart; and
(2) If an instructor is conducting the initial security awareness training
(b)
(i) Each flight school employee employed on January 18, 2005 receives initial security awareness training in accordance with this subpart by January 18, 2005; and
(ii) Each flight school employee hired after January 18, 2005 receives initial security awareness training within 60 days of being hired.
(2) In complying with paragraph (b)(2) of this section, a flight school may use either:
(i) The initial flight school security awareness training program offered by TSA; or
(ii) An alternative initial flight school security awareness training program that meets the criteria of paragraph (c) of this section.
(c)
(1) Require active participation by the flight school employee receiving the training.
(2) Provide situational scenarios requiring the flight school employee receiving the training to assess specific situations and determine appropriate courses of action.
(3) Contain information that enables a flight school employee to identify—
(i) Uniforms and other identification, if any are required at the flight school, for flight school employees or other persons authorized to be on the flight school grounds.
(ii) Behavior by clients and customers that may be considered suspicious, including, but not limited to:
(A) Excessive or unusual interest in restricted airspace or restricted ground structures;
(B) Unusual questions or interest regarding aircraft capabilities;
(C) Aeronautical knowledge inconsistent with the client or customer's existing airman credentialing; and
(D) Sudden termination of the client or customer's instruction.
(iii) Behavior by other on-site persons that may be considered suspicious, including, but not limited to:
(A) Loitering on the flight school grounds for extended periods of time; and
(B) Entering “authorized access only” areas without permission.
(iv) Circumstances regarding aircraft that may be considered suspicious, including, but not limited to:
(A) Unusual modifications to aircraft, such as the strengthening of landing gear, changes to the tail number, or stripping of the aircraft of seating or equipment;
(B) Damage to propeller locks or other parts of an aircraft that is inconsistent with the pilot training or aircraft flight log; and
(C) Dangerous or hazardous cargo loaded into an aircraft.
(v) Appropriate responses for the employee to specific situations, including:
(A) Taking no action, if a situation does not warrant action;
(B) Questioning an individual, if his or her behavior may be considered suspicious;
(C) Informing a supervisor, if a situation or an individual's behavior warrants further investigation;
(D) Calling the TSA General Aviation Hotline; or
(E) Calling local law enforcement, if a situation or an individual's behavior could pose an immediate threat.
(vi) Any other information relevant to security measures or procedures at the flight school, including applicable information in the TSA Information Publication “Security Guidelines for General Aviation Airports”.
(d)
(2) At a minimum, a recurrent security awareness training program must contain information regarding—
(i) Any new security measures or procedures implemented by the flight school;
(ii) Any security incidents at the flight school, and any lessons learned as a result of such incidents;
(iii) Any new threats posed by or incidents involving general aviation aircraft contained on the TSA Web site; and
(iv) Any new TSA guidelines or recommendations concerning the security of general aviation aircraft, airports, or flight schools.
(a)
(1) Contain the flight school employee's name and a distinct identification number.
(2) Indicate the date on which the flight school employee received the security awareness training.
(3) Contain the name of the instructor who conducted the training, if any.
(4) Contain a statement certifying that the flight school employee received the security awareness training.
(5) Indicate the type of training received, initial or recurrent.
(6) Contain a statement certifying that the alternative training program used by the flight school meets the criteria in 49 CFR 1552.23(c), if the flight school uses an alternative training program to comply with this subpart.
(7) Be signed by the flight school employee and an authorized official of the flight school.
(b)
(1) A copy of the document required by paragraph (a) of this section for the initial and each recurrent security awareness training conducted for each flight school employee in accordance with this subpart; and
(2) The alternative flight school security awareness training program used by the flight school, if the flight school uses such a program.
(c)