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National Credit Union Administration (NCUA).
Final rule.
Congress, in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, required all federal agencies with the authority to impose civil monetary penalties (CMPs) to regularly evaluate those CMPs to ensure that they continue to maintain their deterrent value. In order to comply with Congress' mandate to adjust CMPs for inflation at least every four years, NCUA is issuing this final rule to implement the required adjustments to the CMPs authorized by the Federal Credit Union Act and other relevant laws.
Effective November 1, 2004.
Allan Meltzer, Associate General Counsel, or Jon Canerday, Trial Attorney, Office of General Counsel, NCUA, 1775 Duke Street, Alexandria, Virginia 22314, or telephone (703) 518-6540.
The Debt Collection Improvement Act of 1996
The CMPs which NCUA is authorized to impose were last adjusted by NCUA in either 1996 or 2000. For those CMPs that were adjusted in 2000, the current adjustment will be the percentage by which the CPI for the month of June 2003 exceeds the CPI for the month of June 2000. According to the Bureau of Labor Statistics, the CPI for the month of June 2000 was 172.4 and the CPI for the month of June 2003 was 183.7. The percentage by which the 2003 figure exceeds the 2000 figure is 6.55 percent. Thus, the CMPs that were last adjusted in 2000 should be increased by 6.55 percent to arrive at the new adjusted amounts (before required rounding).
For those CMPs that were adjusted in 1996, the current adjustment will be the percentage by which the CPI for the month of June 2003 exceeds the CPI for the month of June 1996. According to the Bureau of Labor Statistics, the CPI for the month of June 1996 was 156.7 and the CPI for the month of June 2003 was 183.7. The percentage by which the 2003 figure exceeds the 1996 figure is 17.23 percent. The CMPs that were last adjusted in 1996 should be increased by 17.23 percent to arrive at the new adjusted amounts (before required rounding).
NCUA is authorized to require credit unions to periodically provide reports of condition. The failure to submit a required report or the submission of a false or misleading report subjects a credit union to three levels of CMPs, depending upon the reasons for noncompliance.
The CMPs authorized by 12 U.S.C. 1782a(a)(3) were last adjusted by NCUA in 2000.
The maximum CMP authorized by 12 U.S.C. 1782a(a)(3) for an inadvertent failure to submit a report or the inadvertent submission of a false or misleading report is $2,000 for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $2,200 for each day. Multiplying the current penalty of $2,200 by 6.55 percent results in an increase of $144.10. When that number is rounded as required by the FCPIA Act,
The maximum CMP authorized by 12 U.S.C. 1782a(a)(3) for a non-inadvertent failure to submit a report or the non-inadvertent submission of a false or misleading report is $20,000 for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $22,000 for each day. Multiplying the current penalty of $22,000 by 6.55 percent results in an increase of $1,441. When that number is rounded as required by the FCPIA Act,
The maximum CMP authorized by 12 U.S.C. 1782a(a)(3) for a failure to submit a report or the submission of a false or misleading report done knowingly or with reckless disregard is $1,000,000 or 1 percent of the total assets of the credit union, whichever is less, for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $1,100,000 for each day. Multiplying the current penalty of $1,100,000 by 6.55 percent results in an increase of $72,050. When that number is rounded as required by the FCPIA Act,
In a provision similar to that discussed above, NCUA is authorized to require each credit union to provide periodic certified statements of the amount of insured shares in the credit union, as well as to pay required deposits into the National Credit Union Share Insurance Fund. The failure to submit a required certified statement or the submission of a false or misleading statement subjects a credit union to three levels or tiers of CMPs, depending upon the reasons for noncompliance.
The CMPs authorized by 12 U.S.C. 1782a(d)(2) were last adjusted by NCUA in 2000. Therefore, these CMPs should be multiplied by 6.55 percent to arrive at the new adjusted amounts (before required rounding).
The maximum CMP authorized by 12 U.S.C. 1782a(d)(2)(A) for an inadvertent failure to timely submit a certified statement or an inadvertent submission of a false or misleading certified statement is $2,000 for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $2,200 for each day. Multiplying the current penalty of $2,200 by 6.55 percent results in an increase of $144.10. When that number is rounded as required by the FCPIA Act,
The maximum CMP authorized by 12 U.S.C. 1782a(d)(2)(B) for a non-inadvertent failure to timely submit a certified statement, or a non-inadvertent submission of a false or misleading certified statement, or the failure or refusal to pay any required deposit or premium for insurance is $20,000 for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $22,000 for each day. Multiplying the current penalty of $22,000 by 6.55 percent results in an increase of $1,441. When that number is rounded as required by the FCPIA Act,
The maximum CMP authorized by 12 U.S.C. 1782a(d)(2)(C) for a failure to submit a report or the submission of a false or misleading report done knowingly or with reckless disregard is $1,000,000 or 1 percent of the total assets of the credit union, whichever is less, for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $1,100,000 for each day. Multiplying the current penalty of $1,100,000 by 6.55 percent results in an increase of $72,050. When that number is rounded as required by the FCPIA Act,
Pursuant to 12 U.S.C. 1785(e)(1), NCUA is authorized to promulgate regulations to provide minimum standards with which each insured credit union must comply with respect to security devices and procedures to discourage robberies, burglaries and larcenies and to assist in the identification and apprehension of persons who commit such acts. A credit union that violates such a regulation is subject to a CMP for each day the violation continues.
The CMPs authorized by 12 U.S.C. 1785(e)(3) were last adjusted by NCUA in 2000. Therefore, these CMPs should be multiplied by 6.55 percent to arrive at the new adjusted amounts (before required rounding).
The maximum CMP authorized by 12 U.S.C. 1785(e)(3) for non-compliance with NCUA security regulations is $100 for each day the violation continues. After the required adjustment for inflation in 2000, the maximum penalty was increased to $110 for each day. Multiplying the current penalty of $110 by 6.55 percent results in an increase of $7.21. When that number is rounded as required by the FCPIA Act,
NCUA is authorized to impose three levels or tiers of CMPs upon insured credit unions or institution-affiliated parties for certain conduct. First and second tier CMPs were not increased for inflation in 2000 because the amount of the increase was not large enough as a result of the rounding rules. Because these CMPs were last adjusted for inflation in 1996, they should now be increased by 17.23 percent to arrive at the new adjusted amounts (before
First tier CMPs, 12 U.S.C. 1786(k)(2)(A), may be imposed for the violation of any law or regulation, the violation of certain final orders or temporary orders, the violation of conditions imposed in writing by the NCUA Board, or the violation of any written agreement between the credit union and NCUA. The statute provides that first tier CMPs shall not be more than $5,000 for each day the violation continues. After the required adjustment for inflation in 1996, the maximum penalty was increased to $5,500 for each day. Multiplying the current penalty of $5,500 by 17.23 percent results in an increase of $947.65. When that number is rounded as required by the FCPIA Act,
Second tier CMPs, 12 U.S.C. 1786(k)(2)(B), are authorized for violations described in first tier CMPs, the reckless engaging in an unsafe or unsound practice in conducting the affairs of a credit union, or the breach of any fiduciary duty, when the violation, practice or breach is part of a pattern of misconduct, or causes or is likely to cause more than a minimal loss to the credit union, or results in pecuniary gain or other benefit. The statute provides a maximum second tier CMP of $25,000 for each day the violation, practice or breach continues. After the required 1996 adjustment for inflation, the maximum penalty was increased to $27,500 per day. Multiplying the current penalty of $27,500 by 17.23 percent results in an increase of $4,738.25. When that number is rounded as required by the FCPIA Act,
Third tier CMPs, 12 U.S.C. 1786(k)(2)(C), may be imposed for any of the acts described in second tier CMPs that cause a substantial loss to the credit union or a substantial pecuniary gain or other benefit. The amount of third tier CMPs depends upon the status of the respondent required to pay the CMP, 12 U.S.C. 1786(k)(2)(D). For a person other than an insured credit union, under the statute, the maximum third tier CMP is $1,000,000 for each day the violation, practice or breach continues. For an insured credit union, the statute provides a daily maximum CMP of the lesser of $1,000,000 or 1 percent of the total assets of the credit union. In 2000, the maximum CMP for a person other than an insured credit union was increased for inflation to $1,175,000 per day. At the same time, the maximum CMP for an insured credit union was increased to the lesser of $1,175,000 or 1 percent of the total assets of the credit union. Multiplying the current penalty of $1,175,000 by 6.55 percent results in an increase of $76,962.50. When that number is rounded as required by the FCPIA Act,
Pursuant to 42 U.S.C. 4012a(f), NCUA is authorized to impose CMPs against a credit union that is found to have a pattern or practice of committing certain specified actions in violation of the National Flood Insurance Program.
The CMPs authorized by 42 U.S.C. 4012a(f) were last adjusted by NCUA in 2000. Therefore, these CMPs should be multiplied by 6.55 percent to arrive at the new adjusted amounts (before required rounding).
The maximum CMP authorized by 42 U.S.C. 4012a(f) is $350 for each violation, up to a maximum of $100,000 per calendar year. After the required adjustments for inflation in 2000, the maximum penalty was increased to $385 for each day, up to a maximum of $110,000 per calendar year. Multiplying the current penalty of $385 by 6.55 percent results in an increase of $25.22. When that number is rounded as required by the FCPIA Act,
The NCUA Board now adopts this final rule to adjust the forgoing CMPs for the rate of inflation, as required by the FCPIA Act. As provided in the final rule, the revised CMP amounts will only apply to violations that occur after the effective date of the final rule.
The FCPIA Act requires adjustments of CMPs for inflation to occur at least every four years. Additionally, the FCPIA Act provides federal agencies with no discretion in the adjustment of CMPs for inflation. Thus, NCUA is unable to vary the amount of the adjustments to reflect any views or suggestions provided by commenters. Further, the regulation is ministerial and technical. For all of these reasons, the NCUA Board finds good cause to determine that public notice and comment for this new regulation is unnecessary, impractical and contrary to the public interest, pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B).
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a proposed rule may have on a substantial number of small credit unions (those under ten million dollars in assets). The proposed rule would not have a significant economic impact on a substantial number of small credit unions, and, therefore, a regulatory flexibility analysis is not required.
NCUA has determined that the proposed rule would not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory
NCUA has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-21) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedures Act. 5 U.S.C. 551. The Office of Management and Budget has reviewed this rule and has determined that for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, it is not a major rule.
Credit unions, Civil monetary penalties.
By the National Credit Union Administration Board on September 27, 2004.
12 U.S.C. 1766, 1782, 1784, 1785, 1786, 1787; 42 U.S.C. 4012a; Pub. L. 101-410; Pub. L. 104-134.
(a) NCUA is required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (Public Law 101-410, 104 Stat. 890, as amended (28 U.S.C. 2461 note)) to adjust the maximum amount of each civil money penalty within its jurisdiction by the rate of inflation. The following chart displays those adjustments, as calculated pursuant to the statute:
(b) The adjustments displayed in paragraph (a) of this section apply to acts occurring beginning on November 1, 2004.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This document makes a correction to Airworthiness Directive (AD) 2004-19-04, which was published in the
The effective date of this AD remains November 1, 2004.
Gary D. Park, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone: (316) 946-4123; facsimile: (316) 946-4107.
On September 8, 2004, FAA issued AD 2004-19-04, Amendment 39-13795 (69 FR 55943, September 17, 2004), which applies to certain Cessna 120, 140, 140A, 150, F150, 170, 172, F172, FR172, P172D, 175, 177, 180, 182, 185, A185E, 190, 195, 205, 205A, 206, P206, P206E, TP206A, TU206, TU206E, U206, U206E, 207, T207, 210, T210, 336, 337, and T337 series airplanes. This AD supersedes AD 86-26-04 with a new AD that requires you to inspect and, if necessary, modify the pilot/co-pilot upper shoulder harness adjusters that have certain Cessna accessory kits incorporated.
The FAA incorrectly referenced the AD number as 2004-19-04. The correct AD number is AD 2004-19-01. This correction is needed to ensure that the correct AD number is entered in the logbook and to eliminate misunderstanding in the field.
Action is taken herein to correct this reference in AD 2004-19-04 and to add this AD correction to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13).
The effective date remains November 1, 2004.
Federal Aviation Administration, DOT.
Final rule; correction.
This document corrects an error that appeared in airworthiness directive (AD) 2002-16-22 (final rule, correction) that was published in the
Effective September 19, 2002.
M. Hassan Amani, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia 30349; telephone (770) 703-6080; fax (770) 703-6097.
Airworthiness Directive (AD) 2002-16-22, amendment 39-12861, applicable to certain Boeing Model 727 series airplanes that have been converted from a passenger- to a cargo-carrying (“freighter”) configuration, was published in the
On August 16, 2004, we issued a final rule, correction (69 FR 50299, August 16, 2004), to AD 2002-16-22. The final rule, correction corrects an error that resulted in an incorrect reference to a supplemental type certificate. As published, the title of final rule, correction states “Boeing Model 727 Series Airplanes Modified with Supplemental Type Certificate SA1767S0 or SA1768SO.” However, the correct applicable supplemental type certificates (STC) are SA1444SO, SA1509SO, SA1543SO, or SA1896SO, as specified in AD 2002-16-22.
Since no other part of the regulatory information has been changed, the final rule is not being republished in the
The effective date of this AD remains September 19, 2002.
Airworthiness Directives; Boeing Model 727 Series Airplanes Modified in Accordance with Supplemental Type Certificate SA1444SO, SA1509SO, SA1543SO, or SA1896SO.
Customs and Border Protection, Homeland Security; Treasury.
Final rule.
This document amends the Customs and Border Protection (CBP) Regulations to provide that merchandise processing fees are eligible to be claimed, in limited circumstances, as drawback based on substitution of finished petroleum derivatives. The changes implemented by this document are consistent with a court decision in which merchandise processing fees were found to be eligible to be claimed as unused merchandise drawback. As drawback based on substitution of finished petroleum derivatives is, in limited circumstances, treated in the same manner as unused merchandise drawback, this amendment reflects that merchandise processing fees are also eligible to be claimed as drawback in these circumstances.
Effective November 8, 2004.
William G. Rosoff, Chief, Duty and Refund Determinations Branch, Office of Regulations and Rulings, U.S. Customs Service, Tel. (202) 572-8807.
Merchandise processing fees are fees the Secretary of the Treasury charges and collects for the processing of merchandise that is formally entered or released into the United States.
Section 313 of the Tariff Act of 1930, as amended, (19 U.S.C. 1313), concerns drawback and refunds. Drawback is a refund of certain duties, taxes and fees paid by the importer of record and granted to a drawback claimant under specific conditions.
In
Subsection (p) of 19 U.S.C. 1313 authorizes drawback that is based on “substitution of finished petroleum derivatives.” Subsection (p)(4)(B) of 19 U.S.C. 1313, in pertinent part, limits the amount of drawback payable under this subsection to the amount of drawback that would be attributable to the article “if imported under [subsection 1313(p)(2)(A)(iii) or (iv)]
Subsection 1313(p)(2)(A)(iii) requires that the exporter of the exported article imported the qualified article in a quantity equal to or greater than the quantity of the exported article. Subsection 1313(p)(2)(A)(iv) requires that the exporter of the exported article purchased or exchanged, directly or indirectly, an imported qualified article from an importer in a quantity equal to or greater than the quantity of the exported article.
The language “had the claim qualified for drawback under subsection (j)” reflects that drawback is payable under 1313(p)(2)(A)(iii) or (iv) pursuant to the same formula set forth in subsection 1313(j),
Consistent with the determination of the CAFC that merchandise processing fees are eligible to be claimed as drawback pursuant to 19 U.S.C. 1313(j), such fees are also eligible to be claimed as drawback when drawback is based on substitution of finished petroleum derivatives pursuant to 19 U.S.C. 1313(p)(2)(A)(iii) or (iv).
The
On October 2, 2003, CBP published in the
Comments were solicited on the proposal.
One comment was received in response to the solicitation of public comment in 68 FR 56804. The commenter supported CBP's proposal to reflect the
After review of the one comment received, and upon consideration, CBP has decided to adopt as final the proposed rule published in the
Because these regulations serve to conform the CBP Regulations to reflect the full scope of a recent decision by the Court of Appeals for the Federal Circuit whereby, in limited circumstances, merchandise processing fees are eligible to be claimed as drawback, it is certified pursuant to the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601
This document is being issued in accordance with 19 CFR 0.1(a)(1).
The principal author of this document was Ms. Suzanne Kingsbury,
Claims, Commerce, CBP duties and inspection, Drawback.
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 23, Harmonized Tariff Schedule of the United States), 1313, 1624.
(a) Duties and fees subject to drawback include:
(4) Merchandise processing fees (see § 24.23 of this chapter) for unused merchandise drawback pursuant to 19 U.S.C. 1313(j), and drawback for substitution of finished petroleum derivatives pursuant to 19 U.S.C. 1313(p)(2)(A)(iii) or (iv).
(b) * * *
(2) Merchandise processing fees (
(b) * * *
(2)
(c)
Department of Veterans Affairs.
Interim final rule.
The Department of Veterans Affairs (VA) is issuing this interim final rule to establish guidelines for establishing presumptions of service connection for diseases associated with service involving detention or internment as a prisoner of war. In accordance with those guidelines, this interim final rule also establishes presumptions of service connection for atherosclerotic and hypertensive heart disease and for stroke disease arising in former prisoners of war. These rules are necessary because claims based on service involving detention or internment as a prisoner of war present unique medical issues and because factors including the lack of contemporaneous medical records during periods of captivity and the relatively small body of available medical information present obstacles to substantiating claims for service-connected benefits based on prisoner-of-war service. By establishing guidelines for identifying diseases associated with service involving detention or internment as a prisoner of war, these rules will help VA to ensure that claims for service-connected benefits for disability or death of former prisoners of war are decided fairly, consistently, and based on all available medical information concerning the diseases associated with detention or internment as a prisoner of war.
This interim final rule is effective October 7, 2004. Comments must be received on or before November 8, 2004.
Written comments may be submitted by: mail or hand-delivery to Director, Regulations Management (00REG1), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; e-mail to
David Barrans, Deputy Assistant General Counsel (022D), Office of General Counsel, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-6332.
VA is revising its regulations to include a new provision, codified at 38 CFR 1.18, establishing guidelines for determining whether to establish new presumptions of service connection for any disease associated with service involving detention or internment as a prisoner of war. VA is also amending its adjudication regulations at 38 CFR 3.309(c) to add atherosclerotic heart disease or hypertensive vascular disease and stroke to the list of diseases VA will presume to be associated with service involving detention or internment as a prisoner of war (POW), and to reflect statutory changes. These new presumptions of service connection reflect VA's determination that presumptions for heart disease and stroke are warranted by application of the guidelines set forth in § 1.18.
Statutory and regulatory standards currently exist to guide VA in identifying diseases associated with exposure to herbicide agents, hazards of service in the Gulf War, and ionizing radiation.
VA is authorized to provide compensation and other benefits for disability or death due to disease or injury incurred in or aggravated by service. To establish service connection for a disease or injury, a claimant ordinarily must provide evidence, with VA's assistance, establishing that the claimed disease or injury was incurred in or aggravated by service. Statutory and regulatory presumptions of service connection relieve claimants of this evidentiary burden in certain circumstances by directing VA adjudicators to presume that certain diseases were incurred in or aggravated by service unless evidence shows otherwise. These presumptions are generally based on scientific and medical data that provide a basis for inferring a connection between a particular disease and some circumstance regarding the veteran's service.
Evidentiary presumptions of service connection serve a number of purposes. By codifying medical findings and principles that otherwise may not be familiar to VA adjudicators, they promote the efficient resolution of issues of service connection without the need for case-by-case investigation and interpretation of the available medical literature. They promote fair and consistent decision making by establishing simple adjudicatory rules to govern the claims of similarly situated veterans. They also may assist claimants who would otherwise face substantial difficulties in obtaining direct proof of service connection due to the complexity of the factual issues, the lack of contemporaneous medical records during service, or other circumstances.
Currently, 38 U.S.C. 1112(b) establishes presumptions of service connection for sixteen categories of disease that are deemed to be associated with detention or internment as a POW. Eleven of those conditions are presumed to be service connected only if the veteran was detained or interned for a period of at least thirty days, and the remaining five are presumed to be service connected if the veteran was detained or interned for any period.
The Secretary of Veterans Affairs is authorized by 38 U.S.C. 501(a) to prescribe all rules and regulations that are necessary or appropriate to carry out the laws administered by VA, including regulations with respect to the nature and extent of proof necessary to establish entitlement to benefits under such laws. Pursuant to that authority, the Secretary may establish reasonable evidentiary presumptions of service connection for diseases. The Secretary has determined that presumptions of service connection are particularly appropriate for former POWs.
Veterans who were detained or interned as POWs generally were subjected to unique hardships including malnutrition, torture, physical and psychological abuse, and a lack of adequate medical care. Although POW experiences have varied with time, place, and other factors, certain hardships are so prevalent across the spectrum of POW experience as to support the presumption that POWs as a group have incurred similar health risks. The lack of contemporaneous personnel and health records to document events, injuries, or diseases during periods of captivity also provides a strong justification for relying on evidentiary presumptions rather than requiring direct proof of service connection. Further, presumptions may simplify and expedite the claims adjudication process, a particularly significant consideration for former POWs, more than ninety percent of whom served in World War II and are now, on average, over eighty years old.
Additionally, although several health effects associated with prisoner-of-war experiences are well known and reflected in existing presumptions of service connection, determining whether other health effects may be associated with prisoner-of-war experience is not a simple task. This is due in part to the discrete nature of the POW experience. The effects of certain other service-related risk factors such as exposure to ionizing radiation or herbicide agents have been extensively studied in relation to exposures occurring in occupational and other civilian settings in addition to studies of veteran populations. In contrast, the effects of the POW experience have been less extensively studied, because there generally are not comparable civilian populations and the number of former POWs available for study is comparatively small. Although studies of former POWs do exist, the limited amount of information available complicates the task of identifying diseases associated with the POW experience. In view of these circumstances, VA has determined that it is appropriate to establish guidelines for VA's review of the medical evidence concerning the association between the POW experience and particular diseases and to establish presumptions of service connection when the evidence reasonably establishes an association.
We are setting forth the guidelines VA will apply in a new regulation at 38 CFR 1.18. Paragraph (a) of § 1.18 states VA's policy to establish presumptions of service connection for former POWs when necessary to prevent denials of benefits in significant numbers of meritorious claims.
Paragraph (b) of § 1.18 states the standard VA will apply in determining whether a presumption of service connection is warranted. That paragraph states that the Secretary may establish a presumption of service connection for a disease when there is “at least limited/suggestive evidence that an increased risk of such disease is associated with service involving detention or internment as a prisoner of war and an association between such detention or internment and the disease is biologically plausible.” We define the term “limited/suggestive evidence” in paragraph (b)(1) to refer to “evidence of a sound scientific or medical nature that is reasonably suggestive of an association between prisoner-of-war experience and the disease, even though the evidence may be limited because matters such as chance, bias, and confounding could not be ruled out with confidence or because the relatively small size of the affected population restricts the data available for study.” Paragraph (b)(2) states, for purposes of illustration, that “limited/suggestive evidence” may be found where one high-quality study detects a statistically significant association or where several smaller studies detect an association that is consistent in magnitude and direction.
The “limited/suggestive evidence” standard is essentially the same standard that the Institute of Medicine (IOM) of the National Academy of Sciences employs in reports it prepares for VA analyzing the health effects of exposure to herbicide agents. In those reports, which are mandated by statute, the IOM classifies the association between a particular disease and the hazard in question as belonging to one of the following four categories: “Sufficient evidence of an association,” “limited/suggestive evidence of an association,” “inadequate or insufficient evidence to determine whether an association exists,” and “sufficient evidence of no association.” VA has established presumptions of service connection for each of the diseases the IOM has classified as having at least
The IOM defines the “limited/suggestive evidence” standard to refer to circumstances in which evidence is suggestive of an association but is limited because matters of chance, bias, and confounding cannot be ruled out with confidence. Our definition adds that the evidence may be limited because the relatively small size of the affected population may restrict the data available for study. We believe this additional consideration is significant with respect to former POWs. As noted above, the lack of a comparable civilian population for study may limit the amount of data available for discerning the health effects of the POW experience. The data available for study are also severely restricted by the fact that there is often little or no information about veterans' health status or adverse exposures during captivity. Moreover, opportunities for future studies are increasingly limited because the population of surviving former POWs, most of whom served in World War II, is declining rapidly. Although we intend that any presumptions VA establishes will be based on sound scientific and medical evidence, we believe that VA's analysis of the evidence should take account of the unique circumstances and evidentiary hurdles affecting this deserving group of veterans. It may be unrealistic to expect the same degree of data or the same number of corroborative studies that may exist with respect to the health effects of herbicide exposure or other areas of investigation. We believe that fairness to former POWs requires that VA fully evaluate the available data and not accord undue significance to the fact that such data are comparatively limited by the small size of the affected population.
The requirement that the association be biologically “plausible” does not require proof of a casual relationship. This is further clarified by § 1.18(d), discussed below. Rather, it requires only a determination that there is a possible biological mechanism, consistent with sound scientific evidence, by which the suspected precipitating event (POW experience) could lead to the health outcome. The IOM routinely applies the concept of biologic plausibility in its reviews of the literature concerning the health effects of herbicide exposure and hazards of Gulf War service and is required by statute to consider biologic plausibility.
Paragraph (c) of § 1.18 states that, in establishing a presumption of service connection for a disease, the Secretary may specify a minimum period of detention or internment necessary to qualify for the presumption. As noted above, some of the current statutory presumptions apply only to former POWs who were detained or interned for a period of at least thirty days. That requirement apparently reflects the determination that certain conditions, such as certain diseases associated with vitamin deficiency, ordinarily may arise only after a prolonged period of food deprivation during confinement. Our rule is intended to allow the Secretary to establish a similar requirement concerning the length of detention or internment for new presumptions established in the future, if warranted by sound scientific or medical evidence.
Paragraph (d) of § 1.18 explains that the requirement in paragraph (b) that a disease be “associated” with the POW experience may be satisfied by evidence demonstrating either a statistical or a causal association. Paragraph (e) of the rule specifies the types of evidence the Secretary will consider in deciding whether a presumption is warranted. This paragraph makes clear that the Secretary need not rely exclusively on studies of former POWs, but may consider studies concerning the health effects of circumstances or hardships similar to those experienced by POWs, if available, as well as any other sound scientific or medical evidence the Secretary considers relevant.
Paragraph (f) of § 1.18 states several factors that VA will consider in evaluating any scientific study concerning diseases possibly associated with the POW experience. The specified factors are similar to the factors VA considers in assessing studies relating to herbicide exposure and other hazards. See 38 U.S.C. 1116(b)(2) and 1118(b)(2)(B); 38 CFR 1.17(b).
Paragraph (g) of § 1.18 states that the Secretary may contract with an appropriate expert body, such as the IOM, to review and summarize the scientific evidence or for any other purpose relevant to the Secretary's determinations under this rule.
There are very few studies investigating the possible relationship between POW experience and stroke. In September 2000, the VA Advisory Committee on Former Prisoners of War received the report of an Expert Panel on Stroke in Former Prisoners of War, which, based on review of the existing scientific literature, found only one relevant study. That 1996 study examined records of 475 former World War II POWs and a control group of 81 non-POW World War II veterans who had been followed as part of a long-term study by the Medical Follow-up Agency of the National Academy of Sciences' IOM. The study found a seven-fold increase in the incidence of stroke among the POWs as compared to the control group (relative risk = 7.03), and a statistically significant nearly ten-fold increase in stroke incidence among POWs who had suffered extreme malnutrition during captivity (relative risk = 9.76). (Brass LM, Page WF. Stroke in Former Prisoners of War. J Stroke and Cerebrovascular Diseases 1996; 6:72-78.) The study also found that the risk of stroke was higher among former POWs suffering from post-traumatic stress disorder (PTSD) than among former POWs without PTSD (relative risk = 1.67). The strength of those findings is limited by the small size of the study population.
Two more recent studies have also addressed the relationship between POW experience and stroke. A 2001 study used Federal death records to obtain death data through 1996 for a study population of 9,457 former POWs and 7,178 controls. The study found that former POWs aged 75 years and older had an increased risk of stroke mortality (hazard ratio = 1.13), although the risk was not statistically significant. (Page WF, Brass LM. Long-Term Heart Disease and Stroke Mortality Among Former American Prisoners of War of World War II and the Korean Conflict: Results of a 50-Year Follow-Up. Military Medicine 2001; 166:803-08.) A subsample of the overall study population had completed a questionnaire in 1967 indicating the presence or absence of certain symptoms during their captivity. The study authors found a statistically significant increase in death due to stroke among veterans who had experienced visual symptoms, such as night blindness, during their captivity (hazard ratio = 3.10). Because the presence of visual symptoms during captivity may be associated with vitamin A deficiency (Page WF. The
On the recommendation of the Expert Panel on Strokes in Former Prisoners of War, VA's Environmental Epidemiology Service in 2003 conducted a study using medical and death data from records of VA and the Health Care Financing Administration (HCFA) of the Department of Health and Human Services for the period from 1991 to 2002. This study, which has not yet been published, included 16,641 World War II POWs and 1,051 Korean War POWs, as well as 8,406 World War II controls and 3,816 Korean War controls. This study found that POWs had a significantly higher incidence of PTSD than the controls and that POWs with PTSD had a higher incidence of stroke than POWs without PTSD (odds ratio = 1.12 for World War II and 1.25 for Korean War). (Kang HK, Bullman TA. Ten Year Mortality and Morbidity Follow-up of Former World War II and Korean War Prisoners of War (unpublished VA Study 2003).) Although the study did not find a significantly increased risk of stroke among POWs as compared to non-POWs, the evidence for an association between PTSD and stroke among POWs is consistent with findings stated in the 1996 study by Brass and Page.
The 1996 Brass and Page study noted that several studies have provided evidence suggesting an association between stress and stroke, although the evidence overall is not conclusive. The authors also noted that the effects of stress on stroke may vary depending upon individual reactions to stress. As stated in paragraph (e)(2) of § 1.18, the Secretary will consider evidence concerning the effects of circumstances or hardships similar to those experienced by POWs, including stress, in assessing the evidence for establishing presumptions of service connection.
Based on the evidence discussed above, the Secretary has determined that a presumption of service connection is warranted for stroke among former prisoners of war. The 1996 and 2001 POW studies both found an increased risk of stroke among former POWs. Although there is an absence of other directly corroborating studies, the lack of additional data is due in part to the small size of the POW population available for study and the limited number of studies generally undertaken in this field. Accordingly, the lack of corroborating data does not imply the absence of an association under these circumstances.
The evidence that the risk of stroke is increased among POWs who suffered extreme malnutrition or visual symptoms during captivity or who have been diagnosed with PTSD also lends support to the finding of an association between POW experience and stroke. As indicated in § 1.18, VA considers stress and malnutrition to be among the hardships ordinarily associated with POW experience. Evidence suggesting that the risk of stroke increases with the severity of those hardships supports the conclusion that stroke is associated with POW experience.
Under the standards set forth in § 1.18, the Secretary finds that the available evidence is suggestive of an association between POW experience and stroke because sound scientific studies provide evidence of an association that is consistent in magnitude and direction, even though it is limited in some respects by the small size of the affected population and the correspondingly limited data available for study. The Secretary further finds that an association between stroke and POW experience is biologically plausible, as discussed below. Accordingly, the Secretary is establishing a presumption of service connection for stroke in former POWs.
The interim final rule establishing this presumption refers generally to “stroke and its complications” and thus will apply to any type of stroke. The associations detected in the 1996 and 2001 POW studies were based on diagnoses of all types of stroke, and the studies did not state separate findings for specific types of stroke. Although there are known differences in the three major categories of stroke (ischemic, hemorrhagic, and embolic) that may suggest etiological differences in some circumstances, the existing data do not provide a basis for excluding any category of stroke from the presumption, and we believe that any uncertainty regarding the strength of the association for these closely related diseases should be resolved in favor of the former POWs. Further, VA believes that the requirements of biologic plausibility are satisfied for each of the major categories of stroke. Presumptions of service connection for former POWs can be rebutted as provided in 38 U.S.C. 1113(a) and 38 CFR 3.307(d). Accordingly, if evidence in a case supports a finding that a particular presumptive condition was not actually caused by a veteran's POW experience, VA may consider the presumption to be rebutted.
As with stroke, there are relatively few studies addressing the association between POW experience and heart disease. A series of older studies did not find consistent evidence of an association, as summarized in Page WF, Ostfeld AM. Malnutrition and Subsequent Ischemic Heart Disease in Former Prisoners of War of World War II and the Korean Conflict. (J Clin Epidemiol 1994; 47:1437-41.) A 1954 study found an excess of cardiovascular deaths among World War II POWs (Cohen BM, Cooper MZ. A Follow-up Study of World War II Prisoners of War. Veterans Administration Medical Monograph, Washington DC: Government Printing Office; 1954.), although subsequent mortality studies in 1970 and 1980 found no excess deaths due to cardiovascular diseases (Nefzger, MD. Follow-up Studies of World War II and Korean War Prisoners. I. Study Plan and Mortality Findings. Am J Epidemiol 1970; 91:123-38; Keehn RJ. Follow-up Studies of World War II and Korean War Prisoners III. Mortality to January 1, 1976. Am J Epidemiol 1980; 111:194-211.) A 1975 morbidity study found a significantly higher rate of hospitalization for heart disease among World War II Pacific Theater POWs as compared to controls. (Beebe GW. Follow-up Studies of World War II and Korean War Prisoners: II. Morbidity, Disability, and Maladjustments. Am J Epidemiol 1975; 101:400-22.) Studies of POWs from other countries also yielded inconsistent results.
More recent studies have yielded intriguing findings concerning the association between heart disease and POW experience. The 1994 study by Page and Ostfeld found a statistically significant increase in deaths due to ischemic heart disease among former POWs who experienced edema (swelling) in their lower limbs during captivity (odds ratio = 2.83). Because localized edema is a symptom of thiamine deficiency, the authors theorized that the findings may suggest an association between malnutrition during captivity and subsequent ischemic heart disease. Current VA regulations provide for presumptive service connection of ischemic heart disease in former POWs who experienced localized edema during captivity. 38 CFR 3.309(c).
The 2001 study by Page and Brass analyzed the increased risk of heart disease among former POWs by age
The 2003 VA study analyzed records of inpatient and outpatient treatment from VA and HCFA records to determine whether POWs had an increased incidence of certain diseases in comparison to the non-POW controls. The study detected small increases in the incidence of hypertension and myocardial infarction among some, but not all of the subpopulations examined, and not all of the findings were statistically significant. However, the study did find a statistically significant increased incidence of hypertension and chronic heart disease among World War II veterans with PTSD (odds ratio = 1.25 for hypertension and 1.19 for chronic heart disease).
The conclusion that PTSD may be associated with cardiovascular disorders is also supported by a 1997 study finding that Vietnam veterans diagnosed with PTSD had a significantly increased risk of circulatory disease many years after service. (Boscarino JA. Diseases Among Men 20 Years After Exposure to Severe Stress: Implications for Clinical Research and Medical Care. Psychosom Med 1997; 59:605-14.)
Based on the evidence discussed above, the Secretary has determined that a presumption of service connection is warranted for atherosclerotic heart disease and hypertensive vascular disease among former POWs. The 2001 study by Page and Brass found a statistically significant increased risk of mortality due to heart disease in former POWs aged 75 and older, based on a relatively large population of former POWs and controls, many of whom had been followed for as many as fifty years by the Medical Follow-up Agency of the National Academy of Sciences' IOM. The 1994 Page and Ostfeld study also found a statistically significant increased risk of heart disease in former POWs who experienced edema, a consequence of malnutrition, and the 2003 VA study found a statistically significant increased risk of heart disease among former POWs with PTSD. As noted above with respect to stroke, the Secretary concludes that the evidence suggesting an association between heart disease and specific hardships of POW experience—malnutrition and stress—is significant. Although the available data concerning the health effects of POW experience are limited, the link to specific aspects of POW experience strengthens the evidence for an association between heart disease and POW service. Accordingly, the Secretary concludes that sound scientific studies provide limited/suggestive evidence of an association between POW experience and heart disease. As discussed below, the Secretary has also determined that the association between POW experience and heart disease is biologically plausible. Accordingly, the Secretary is establishing a presumption of service connection for heart disease in former POWs.
The studies discussed above did not all investigate the same range of heart diseases and thus do not clearly resolve the question of which types of heart disease may be associated with POW experience. For purposes of this presumption, we will include all cardiovascular diseases that are consistent, in terms of biologic plausibility, with the findings in the relevant studies in that the diseases are potentially capable of being caused by the circumstances or hardships of POW service such as extreme stress or malnutrition. We describe these diseases as atherosclerotic heart disease or hypertensive vascular disease (to include hypertensive heart disease). Atherosclerotic heart disease is a term used to refer to a heart disease involving progressive narrowing and hardening of the arteries over time and encompasses ischemic heart disease, coronary artery disease, and other diseases that may be described by a more specific diagnosis. Hypertensive vascular disease refers to disease associated with elevated blood pressure. The presumption would not extend to diseases that arise from viral or bacterial causes, because we conclude that the relevant studies, and the evidence concerning biologic plausibility, do not support a finding at this time that such heart diseases are associated with POW experience.
With respect to certain types of atherosclerotic heart disease or hypertensive vascular disease that are to be covered by these presumptions, there is little available evidence upon which to rule in or rule out the possibility that the condition is capable of being caused by the hardships of POW service. In those cases, we have chosen to resolve the doubt in favor of veterans and include the condition within the scope of the presumption. Although the necessity of inclusion of some conditions may be uncertain from a purely scientific perspective, VA has decided as a policy matter to resolve this issue in favor of veterans because there is a reasonable basis for doing so. Presumptions of service connection for former POWs can be rebutted as provided in 38 U.S.C. 1113(a) and 38 CFR 3.307(d). Accordingly, if evidence in a case supports a finding that a particular presumptive condition was not actually caused by a veteran's POW experience, VA may consider the presumption to be rebutted.
The interim final rule also states that the presumption of service connection applies to the complications of atherosclerotic heart disease and hypertensive vascular disease, to make clear that congestive heart failure, myocardial infarction, arrhythmias, and similar complications may be service connected if they result from atherosclerotic heart disease or hypertensive vascular disease.
The Secretary has concluded that an association between POW experience and both heart disease and stroke is biologically plausible. The concept of biologic plausibility refers to knowledge of the biological mechanism by which a particular event can lead to a health outcome. It does not require conclusive proof of a causal relationship between the event and the health outcome, but requires a determination as to whether there is a possible biological mechanism that is consistent with sound scientific evidence by which the event could lead to the health outcome. Accordingly, to be biologically plausible, an association must be consistent with existing scientific and medical knowledge, even if current evidence does not conclusively identify a specific known mechanism by which the circumstances in question cause the diseases associated with such circumstances. Current medical literature suggests plausible, though not established, biological mechanisms by which stress and/or malnutrition during POW captivity could contribute to heart disease or stroke.
A number of authorities have postulated that stress may contribute to cardiovascular disease through a concept referred to as “allostatic load,” which is described as the long-term effect of the physiological response to stress. Through the process of allostasis, the autonomic nervous system, the hypothalamic-pituitary-adrenal (HPA) axis, and the cardiovascular, metabolic, and immune systems protect the body by responding to stress with adaptive changes. Those adaptations can cause wear and tear on the systems involved in this response and may produce a variety of cardiovascular changes associated with atherosclerosis, hypertension, cardiac arrhythmias,
Support for the biologic plausibility of an association between malnutrition and heart disease and stroke comes from evidence that vitamin deficiencies may cause elevated plasma levels of homocysteine, a naturally occurring amino acid. A number of studies suggest that elevated homocysteine levels may produce effects on the cardiovascular system that can lead to heart disease or stroke. (Stein, JH, McBride PE. Hyperhomocysteinemia and Atherosclerotic Vascular Disease: Pathophysiology, Screening, and Treatment. Arch Int Med 1998; 158:1301-06; Tsai J, Perrella MA, Yoshizumi M, Hseih C, Haber E, Schlegel R, Lee M. Promotion of Vascular Smooth Muscle Cell Growth by Homocysteine: A Link to Atherosclerosis. 91 Proc Natl Acad Sci 1994; 91:6369-73.) Although the available evidence is not conclusive, it satisfies the requirement of biologic plausibility for purposes of the Secretary's determination.
VA's regulation at 38 CFR 3.309(c) identifies the diseases VA presumes to be service connected for former POWs. We are amending this list of diseases by adding atherosclerotic heart disease, hypertensive vascular disease (including hypertensive heart disease), stroke, and their complications.
We are removing the note in current § 3.309(c) specifying that the term “beriberi heart disease” includes ischemic heart disease in a former POW who experienced localized edema during captivity. This note was added based on the 1994 Page and Ostfeld study finding an association between the presence of lower-limb edema during POW captivity and subsequent ischemic heart disease. This interim final rule establishes a presumption of service connection for heart disease, including ischemic heart disease, without regard to whether localized edema was present in service. Accordingly, we are removing the current note to make clear that the presence of edema is no longer required in order to establish service connection for ischemic heart disease.
We are making one other change to § 3.309(c). Section 3.309(c) states that the presumptions of service connection apply only to veterans who were interned or detained for not less than 30 days. The 30-day requirement was formerly mandated by the governing statutory provisions at 38 U.S.C. 1112(b). Effective December 16, 2003, however, section 201 of the Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651, amended 38 U.S.C. 1112(b) to eliminate the 30-day requirement for psychosis, any anxiety states, dysthymic disorders, organic residuals of frostbite and post-traumatic osteoarthritis. We are revising § 3.309(c) to conform to the current provisions of section 1112(b). We are including heart disease and stroke among the conditions that will be presumed to be service connected following any period of POW captivity. The diseases that remain subject to a 30-day detention or internment requirement generally are those that would be expected to be incurred only over a prolonged period of detention or internment, such as diseases associated with malnutrition. Because the evidence indicates that heart disease and stroke potentially may be associated either with malnutrition during prolonged captivity or with stress due to circumstances such as torture or abuse, which may occur during even brief periods of captivity, we do not believe a minimum period of detention or internment is warranted for these presumptions.
As part of a VA project to rewrite all of its adjudication regulations in part 3 of title 38, Code of Federal Regulations, we published a notice of proposed rule making in the
VA has determined that it is appropriate to issue this rule as an interim final rule without providing an opportunity for prior public comment. The provisions of this rule to be codified at 38 CFR 1.18 specify the procedures VA intends to follow in exercising its discretionary authority under 38 U.S.C. 501(a) to establish new presumptions of service connection for former POWs. These portions of the rule constitute a general statement of VA policy or, alternatively, rules of VA procedure and practice. Accordingly, they are exempt under 5 U.S.C. 553(b)(3)(A) from the notice and comment requirements of the Administrative Procedure Act. The portions of this rule revising 38 CFR 3.309(c) to conform to the provisions of 38 U.S.C. 1112(b), as amended by the Veterans Benefits Act of 2003, do not involve any change in law, but merely restate the statutory provisions of 38 U.S.C. 1112(b). Accordingly, these portions of the rule are, at most, interpretative rules that are also exempt under 5 U.S.C. 553(b)(3)(A) from the notice and comment requirements of the Administrative Procedure Act. Alternatively, pursuant to 5 U.S.C. 553(b)(3)(B), the Secretary for good cause finds that notice and an opportunity for prior public comment is unnecessary with respect to this portion of the rule because it merely tracks a statutory provision that VA is required to follow.
In accordance with 5 U.S.C. 553(b)(3)(B), the Secretary finds that there is good cause for dispensing with the opportunity for prior comment with respect to the portions of this rule establishing new presumptions of service connection for atherosclerotic heart disease, hypertensive vascular disease, and stroke among former POWs. The Secretary concludes that providing an opportunity for prior comment is unnecessary because this portion of the rule is unlikely to generate any adverse public comment, inasmuch as it confers a benefit on a deserving class of veterans based on sound scientific evidence. The Secretary further finds that it is impracticable to delay this regulation for the purpose of soliciting prior public comment because the class of veterans affected by this rule is elderly and rapidly dwindling. More than 90% of all POWs served in World War II and are now, on average, over eighty years old. As of January 1, 2003, this population of World War II veterans had an annual mortality rate of nine percent. Delay in implementing these rules would have a significant adverse effect and frustrate the beneficial purpose of this rule in view of the high mortality rate among the POW population and the fact that the majority of former POWs are at an age where their medical and financial needs are likely to be at their greatest.
For the foregoing reasons, the Secretary is issuing this rule as an interim final rule. The Secretary will
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule will have no such effect on State, local, or tribal governments, or the private sector.
The Office of Management and Budget has reviewed this document under Executive Order 12866.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that these amendments will not directly affect any small entities. Only VA beneficiaries and their survivors will be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program numbers are 64.109, and 64.110.
Administrative practice and procedure, Claims.
Administrative practice and procedure, Claims, Disability benefits, Health care, Veterans, Vietnam.
38 U.S.C. 501(a), unless otherwise noted.
(a)
(b)
(1)
(2)
(c)
(d)
(e)
(1) Evidence regarding the increased incidence of disease in former prisoners of war;
(2) Evidence regarding the health effects of circumstances or hardships similar to those experienced by prisoners of war (such as malnutrition, torture, physical abuse, or psychological stress);
(3) Evidence regarding the duration of exposure to circumstances or hardships experienced by prisoners of war that is associated with particular health effects; and
(4) Any other sound scientific or medical evidence the Secretary considers relevant.
(f)
(1) The degree to which the study's findings are statistically significant;
(2) The degree to which any conclusions drawn from the study data have withstood peer review;
(3) Whether the methodology used to obtain the data can be replicated;
(4) The degree to which the data may be affected by chance, bias, or confounding factors; and
(5) The degree to which the data may be relevant to the experience of prisoners of war in view of similarities or differences in the circumstances of the study population.
(g)
38 U.S.C. 501(a), 1110.
38 U.S.C. 501(a), unless otherwise noted.
(c)
Psychosis.
Any of the anxiety states.
Dysthymic disorder (or depressive neurosis).
Organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite.
Post-traumatic osteoarthritis.
Atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia).
Stroke and its complications.
(2) If the veteran:
(i) Is a former prisoner of war and;
(ii) Was interned or detained for not less than 30 days, the following diseases shall be service connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of § 3.307 are also satisfied.
Avitaminosis.
Beriberi (including beriberi heart disease).
Chronic dysentery.
Helminthiasis.
Malnutrition (including optic atrophy associated with malnutrition).
Pellagra.
Any other nutritional deficiency.
Irritable bowel syndrome.
Peptic ulcer disease.
Peripheral neuropathy except where directly related to infectious causes.
Cirrhosis of the liver.
38 U.S.C. 1112(b).
Postal Service.
Final rule.
This final rule amends the regulations that define a postage meter and its components and a manufacturer and/or distributor of postage meters. The rule also puts forth the responsibilities of any authorized person or entity to notify the Postal Service upon a change in ownership or control, or bankruptcy or insolvency, and identifies factors the Postal Service will consider in acting upon requests for changes of approval, ownership, or control of an approved manufacturer or distributor.
This rule is effective on October 7, 2004.
Wayne Wilkerson, manager of Postage Technology Management, by fax at 703-292-4050.
A proposed rule was published in the
The Postal Service gave thorough consideration to these comments, and incorporated as appropriate with only minor, non-material exception. You may review comments received by submitting a request of the office of Postage Technology Management at 703-292-3691 or by fax at 703-292-4073.
The final plan follows.
Administrative practice and procedure, Postal Service.
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 410, 2601, 2605; Inspector General Act of 1978, as amended (Pub. L. 95'452, as amended), 5 U.S.C. App. 3.
(a) Postage evidencing systems produce evidence of prepayment of U.S. postage by any method other than postage stamps or permit imprint. They include but are not limited to postage meters and PC Postage” systems. The Postal Service considers the infrastructure associated with such systems to be essential to the exercise of its specific powers to prescribe postage and provide evidence of payment of postage under 39 U.S.C. 404(a)(2) and (4).
(b) Due to the potential for adverse impact upon Postal Service revenue, the following activities may not be engaged in by any person or concern without prior, written approval of the Postal Service:
(1) Producing or distributing any postage evidencing system that generates U.S. postage.
(2) Repairing, distributing, refurbishing, remanufacturing, or destroying any component of a postage evidencing system that accounts for or authorizes the printing of U.S. postage.
(3) Owning or operating an infrastructure that maintains operating data for the production of U.S. postage, or accounts for U.S. postage purchased for distribution through a postage evidencing system.
(4) Owning or operating an infrastructure that maintains operating data that is used to facilitate licensing or registration with the Postal Service of users of a postage evidencing system.
(c) Any person or entity seeking authorization to perform any activity described in paragraph (b) of this section must submit a request to the Postal Service in person or in writing.
(d) Approval shall be based upon satisfactory evidence of the applicant's integrity and financial responsibility, and commitment to the security of the postage evidencing system, and a determination that disclosure to the applicant of the Postal Service customer, financial, or other data of a commercial nature necessary to perform the function for which approval is sought would be appropriate and consistent with good business practices within the meaning of 39 U.S.C. 410 (c)(2). The Postal Service may condition its approval on the agreement to undertakings by the applicant that would give the Postal Service appropriate assurance of the applicant's ability to meet its obligations under this section, including but not limited to the method and manner of performing certain financial, security, and servicing functions and the need to maintain sufficient financial reserves to guarantee
(e) Qualification and approval may be based upon conditions agreed to by the Postal Service and the applicant. The applicant is approved in writing to engage in the function(s) for which authorization was sought and approved.
(a) Any person or entity authorized under § 501.1 must promptly notify the Postal Service when it has a reasonable expectation that there may be a change in its ownership or control including changes in the ownership of an affiliate which exercises control over its postage evidencing system operations in the United States. A change of ownership or control within the meaning of this section includes entry into a strategic alliance or other agreement whereby the third party has access to data related to the security of the system or the third party is a competitor to the Postal Service. Any person or entity seeking to acquire ownership or control of a person or entity authorized under § 501.1 must provide the Postal Service satisfactory evidence that it satisfies the conditions for approval stated in § 501.1. Early notification of a proposed change in ownership or control will facilitate expeditious review of an application to acquire ownership or control under this section.
(b) Any person or entity authorized under § 501.1 must promptly notify the Postal Service when it has a reasonable expectation that there may be a change in the status of its financial condition either through bankruptcy, insolvency, assignment for the benefit of creditors, or other similar financial action. Any person or entity authorized under § 501.1 who experiences a change in the status of its financial condition may, at the discretion of the Postal Service, have its authorization under § 501.1 modified or terminated.
Environmental Protection Agency (EPA).
Immediate final rule.
Delaware has applied to EPA for final authorization of revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these revisions satisfy all requirements needed to qualify for final authorization and is authorizing Delaware's revisions through this immediate final action. EPA is publishing this rule to authorize the revisions without a prior proposal because we believe this action is not controversial and do not expect comments that oppose it. Unless we receive written comments that oppose this authorization during the comment period, the decision to authorize Delaware's revisions to its hazardous waste program will take effect. If we receive comments that oppose this action, or portions thereof, we will publish a document in the
This final authorization will become effective on December 6, 2004, unless EPA receives adverse written comments by November 8, 2004. If EPA receives any such comment, it will publish a timely withdrawal of this immediate final rule in the
Submit your comments, identified by FRL-7825-5 by one of the following methods:
1. Federal eRulemaking Portal:
2. E-mail:
3. Mail: Lillie Ellerbe, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.
4. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information.
You may inspect and copy Delaware's application from 8 a.m. to 4:30 p.m., Monday through Friday at the following addresses: Delaware Department of Natural Resources & Environmental Control, Division of Air & Waste Management, Solid and Hazardous Waste Management Branch, 89 Kings Highway, Dover, DE 19901, Phone number (302) 739-3689, Attn: Karen J'Anthony, and EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-5254.
Lillie Ellerbe, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-5454.
States that have received final authorization from EPA under RCRA
EPA concludes that Delaware's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Delaware final authorization to operate its hazardous waste program with the revisions described in its application for program revisions, subject to the procedures described in section E, below. Delaware has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those HSWA requirements and prohibitions for which Delaware has not been authorized, including issuing HSWA permits, until the State is granted authorization to do so.
This decision serves to authorize revisions to Delaware's authorized hazardous waste program. This action does not impose additional requirements on the regulated community because the regulations for which Delaware is being authorized by today's action are already effective and are not changed by today's action. Delaware has enforcement responsibilities under its state hazardous waste program for violations of its program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Perform inspections, and require monitoring, tests, analyses or reports;
• Enforce RCRA requirements and suspend or revoke permits; and
• Take enforcement actions regardless of whether Delaware has taken its own actions.
EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's
If EPA receives comments that oppose this authorization, or portions thereof, we will withdraw this rule, or portions thereof, by publishing a document in the
If we receive comments that oppose the authorization of a particular revision to the State's hazardous waste program, we will withdraw that part of this rule, but the authorization of the program revisions that the comments do not oppose will become effective on the date specified above. The
Initially, Delaware received final authorization to implement its hazardous waste management program effective June 22, 1984 (53 FR 23837). EPA granted authorization for revisions to Delaware's regulatory program effective October 7, 1996 (61 FR 41345); October 19, 1998 (63 FR 44152); September 11, 2000 (65 FR 42871); August 8, 2002 (67 FR 51478), and May 3, 2004 (69 FR 10171).
On August 23, 2004, Delaware submitted a program revision application, seeking authorization of additional revisions to its program in accordance with 40 CFR 271.21. Delaware's revision application includes various regulations that are equivalent to, and no less stringent than, revisions to the Federal hazardous waste program, as published in the
Delaware seeks authority to administer the Federal requirements that are listed in Table 1. This Table lists the State analogs that are being recognized as no less stringent than the analogous Federal requirements. Unless otherwise stated, the State's statutory references are to the Delaware Regulations Governing Hazardous Waste (DRGHW), amended and effective July 1, 2002, July 11, 2002, March 21, 2004 and August 21, 2004. The statutory references are to 7 Delaware Code Annotated (1991).
In addition, Delaware will be authorized to carry out, in lieu of the Federal program, State-initiated revisions to provisions of the State's Program. These State-initiated revisions to some of Delaware's existing regulations are for the purpose of correcting errors and adding consistency or clarification to the existing regulations. The following State-initiated revisions are equivalent and analogous to the numerically-identical RCRA provisions found at Title 40 of the Code of Federal Regulations: DRGHW 260.10; 261.1(c)(8); 261.32; Part 261, Appendix VIII; 264.145(a)(1); 264.1050(h); and 265.1050(g). One other State-initiated revision being authorized by this notice is DRGHW 122.20 title and paragraph (a)(1), which is equivalent and analogous to 40 CFR 270.20 title and paragraph (a)(1).
The Delaware hazardous waste program contains certain provisions that are beyond the scope of the Federal program. These broader in scope provisions are not part of the program being authorized by today's action. EPA cannot enforce requirements that are broader in scope, although compliance with such provisions is required by Delaware law. Examples of broader in scope provisions of Delaware's program include, but are not limited to, the following:
(a) Delaware's regulation at DRGHW 263.102(c) amends requirements for permit termination, etc.
(b) Delaware's regulation at DRGHW 263.103(d) increases the time an application to replace an expiring permit must be submitted from 60 days to 90 days.
(c) Delaware's regulation at DRGHW 265.55 adds language clarifying that the emergency coordinator must receive annual training in assessing possible hazards to human health and the environment that may result from a release, fire or explosion.
The Delaware hazardous waste program contains some provisions that are more stringent than is required by the RCRA program. The more stringent provisions are being recognized as a part of the Federally-authorized program and include the following:
(a) Delaware's regulations at DRGHW 265.195(c) and 265.201(c) are more stringent because the State adds a requirement for written inspection records for tanks.
(b) Delaware's regulation at DRGHW 273.19 is more stringent because the State adds a requirement for written records for shipments of universal waste.
After authorization, Delaware will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that we issued prior to the effective date of this authorization until the timing and process for effective transfer to the State are mutually agreed upon. Until such time as formal transfer of EPA permit responsibility to the State occurs and EPA terminates its permit, EPA and the State agree to coordinate the administration of permits in order to maintain consistency. We will not issue any more new permits or new portions of permits for the provisions listed in section G above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Delaware is not yet authorized.
Delaware is not seeking authorization to operate the program on Indian lands, since there are no Federally-recognized Indian lands in Delaware.
Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart I, for this authorization of Delaware's program revisions until a later date.
This rule only authorizes hazardous waste requirements pursuant to RCRA section 3006 and imposes no requirements other than those imposed by State law (see Supplementary Information: section A. Why are Revisions to State Programs Necessary?). Therefore, this rule complies with applicable executive orders and statutory provisions as follows. 1. Executive Order 12866: Regulatory Planning Review—The Office of Management and Budget has exempted this rule from its review under Executive Order 12866. 2. Paperwork Reduction Act—This rule does not impose an information collection burden under the Paperwork Reduction Act. 3. Regulatory Flexibility Act—After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act, I certify that this rule will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act—Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act. 5. Executive Order 13132: Federalism—Executive Order 13132 does not apply to this rule because it will not have federalism implications (
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
Corporation for National and Community Service.
Final rule; correction.
The Corporation for National and Community Service (hereinafter the “Corporation”), hereby amends its regulations for three programs (Senior Companions, Foster Grandparents and RSVP). These amendments make technical corrections to the final rules issued on April 14, 2004, for the Foster Grandparent Program, and on April 19, 2004, for the Retired and Senior Volunteer Program. They also clarify the eligibility of and requirements for faith-based organizations to serve as Senior Corps sponsors and volunteer stations under all three programs.
Effective on October 7, 2004.
Mr. Peter Boynton at (202) 606-5000, ext. 499 or by e-mail:
Aged, Grant programs-social programs, Volunteers.
42 U.S.C. 4950
(r) Sponsor. A public agency or private non-profit organization, either secular or faith-based, that is responsible for the operation of a Senior Companion project.
(w) Volunteer station. A public agency, secular or faith-based private non-profit organization, or proprietary health care organization that accepts the responsibility for assignment and supervision of Senior Companions in health, education, social service or related settings such as multi-purpose centers, home health care agencies, or similar establishments. Each volunteer station must be licensed or otherwise
The Corporation awards grants to public agencies, including Indian tribes and non-profit private organizations, both secular and faith-based, in the United States that have the authority to accept and the capability to administer a Senior Companion project.
(c) * * *
(1) Ensuring that a volunteer station is a public or non-profit private organization, whether secular or faith-based, or an eligible proprietary health care agency, capable of serving as a volunteer station for the placement of Senior Companions;
(g) * * *
(2) A sponsor or volunteer station may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use Corporation funds to support any inherently religious activities, such as worship, religious instruction, or proselytization, as part of the programs or services funded. If an organization conducts such activities, the activities must be offered separately, in time or location, from the programs or services funded under this part.
42 U.S.C. 4950
(u)
(z)
The Corporation awards grants to public agencies, including Indian tribes and non-profit private organizations, both secular and faith-based, in the United States that have the authority to accept and the capability to administer a Foster Grandparent project.
(c) * *
(1) Ensuring that a volunteer station is a public or non-profit private organization, whether secular or faith-based, or an eligible proprietary health care agency, capable of serving as a volunteer station for the placement of Foster Grandparents;
(g) * * *
(2) A sponsor or volunteer station may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use Corporation funds to support any inherently religious activities, such as worship, religious instruction, or proselytization, as part of the programs or services funded. If an organization conducts such activities, the activities must be offered separately, in time or location, from the programs or services funded under this part.
42 U.S.C. 4950
(o)
(r)
The Corporation awards grants to public agencies, including Indian tribes and non-profit private organizations, both secular and faith-based, in the United Sates that have authority to accept and the capability to administer an RSVP project.
(c) * * *
(1) Ensuring that a volunteer station is a public or non-profit private organization, whether secular or faith-based, or an eligible proprietary health care agency, capable of serving as a volunteer station for the placement of RSVP volunteers to meet locally identified needs;
(g) * * *
(2) A sponsor or volunteer station may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use Corporation funds to support any inherently religious activities, such as worship, religious instruction, or proselytization, as part of the programs or services funded. If an organization conducts such activities, the activities must be offered separately, in time or location, from the programs or services funded under this part.
Office of Personnel Management.
Proposed rule.
The Office of Personnel Management is issuing proposed regulations to implement a statutory amendment that requires the pay of heads of agencies and other designated employees to be calculated and paid on a biweekly basis instead of on a monthly basis. The proposed regulations also prescribe the circumstances under which an agency may calculate the pay of an employee on a biweekly pay period basis whose pay otherwise would be calculated on a monthly or other basis.
Comments must be received on or before December 6, 2004.
Send or deliver comments to Donald J. Winstead, Deputy Associate Director for Pay and Performance Policy, Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC 20415, Fax: (202) 606-4264, or e-mail at
Ronald Genua by telephone at (202) 606-2858; by Fax at (202) 606-4264; or by e-mail at
The Office of Personnel Management (OPM) is issuing proposed regulations to calculate pay on a biweekly pay period basis for employees whose pay was formerly calculated on a monthly basis. Section 1124 of Public Law 108-136 (November 24, 2003) amended 5 U.S.C. 5504 to require the pay of heads of agencies (including the heads of military departments) to be calculated and paid on a biweekly basis instead of on a monthly basis. This law also amended 5 U.S.C. 5504 to cover members of the Foreign Service, the Senior Foreign Service, and the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service. In addition, 5 U.S.C. 5504(c)(3), as amended, allows an agency to make exceptions and elect to calculate the pay of employees on a biweekly pay period basis whose pay otherwise would be calculated on a monthly or other basis. The law requires OPM to issue regulations providing guidelines for these exceptions to be made.
Section 1124 became effective on the first day of the first pay period beginning on or after the date of enactment of the Act (November 24, 2003). Since biweekly pay periods for Federal employees begin on a Sunday, this provision became effective on November 30, 2003, for most officials and employees. OPM notified agencies of this legislative change on December 24, 2004, in a memorandum to human resources directors. (
The change in the method of computing pay for heads of agencies and other affected employees has no effect on the pay they receive for a given period of work. Prior to the change in 5 U.S.C. 5504, the heads of agencies received a full month's pay for each full month of service (or fraction thereof). For monthly pay computations, an employee's annual salary was divided by 12 to determine the monthly amount. Under the new law, these employees receive a full pay period's worth of pay for each full pay period of service (or fraction thereof). For biweekly pay computations, an employee's annual salary is divided by 2,087 to determine an hourly rate, and the hourly rate is multiplied by 80 to determine the biweekly rate.
As a result of the amendment to 5 U.S.C. 5504, the pay of most Federal employees in executive branch agencies is calculated on a biweekly pay period basis. However, some categories of employees continue to be excluded because they are excluded from the definition of “employee” in 5 U.S.C. 5541(2) (except as provided in 5 U.S.C. 5504(c)(2)(B)). For example, members of the Uniformed Division of the Secret Service and the U.S. Park Police are not covered by 5 U.S.C. 5504 because they are excluded from the definition of “employee” by 5 U.S.C. 5541(2)(iv). However, agencies may have established biweekly pay period computations for such employees under separate legal authority.
In § 550.605, OPM proposes to allow an agency under certain circumstances to deem that an otherwise excluded employee meets the definition of a covered employee under § 550.602 for the purpose of computing his or her pay on a biweekly pay period basis. OPM proposes to allow agencies to make exceptions in situations where continuing to calculate an employee's pay on a monthly or other basis would diminish the level of services provided to the public by the agency. In addition, we propose to allow an agency head or designee to make an exception to include otherwise excluded employees when he or she determines that computing the pay of such employees under the rules in 5 U.S.C. 5504 would provide cost savings in agency operations. If an agency chooses to make such an exception, an employee's hourly rate of pay would be calculated by using a divisor of 2,087. Each agency that decides to make an exception under § 550.605 must notify OPM in writing of any exceptions made under that authority.
I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would affect only Federal agencies and employees.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
Administrative practice and procedure, Claims, Government employees, Wages.
Accordingly, OPM is proposing to amend part 550 of title 5 of the Code of Federal Regulations as follows:
1. A new subpart F is added to part 550 to read as follows:
5 U.S.C. 5504; Pub. L. 108-136, 117 Stet. 1637.
This subpart provides regulations to implement 5 U.S.C. 5504 to compute pay on a biweekly pay period basis for employees in an agency, as defined in § 550.603.
(a) This subpart applies to—
(1) An employee in or under an agency, except an employee excluded by paragraph (b) of this section;
(2) The head of an agency;
(3) The head of a military department, as defined in 5 U.S.C. 102;
(4) A Foreign Service officer;
(5) A member of the Senior Foreign Service;
(6) A member of the Senior Executive Service; or
(7) A member of the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.
(b) This subpart does not apply to—
(1) An employee on the Isthmus of Panama in the service of the Panama Canal Commission; or
(2) An employee or individual excluded from the definition of employee in 5 U.S.C. 5541(2), except employees excluded by 5 U.S.C. 5541(2)(ii), (iii), and (xiv) through (xvii) are covered by this subpart.
In this subpart—
Agencies must apply the biweekly pay period and computation of pay provisions of 5 U.S.C. 5504 for employees covered by § 550.602(a).
An agency head or designee may deem that an employee excluded from coverage under § 550.602(b)(2) is covered by 5 U.S.C. 5504 in situations where he or she determines that continuing to calculate the pay of such employees on a monthly or other basis would diminish the level of services provided to the public by the agency. An agency head or designee also may deem that otherwise excluded employees are covered by 5 U.S.C. 5504 when he or she determines that computing the pay of such employees under that provision of law would provide cost savings in agency operations.
Each agency must notify OPM in writing of any exceptions made under § 550.605.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus Model A319, A320, and A321 series airplanes. This proposed AD would require modification of certain auxiliary power unit (APU) alternating current (AC) generators. This proposed AD is prompted by a report of an explosion in the APU compartment, which blew open the compartment doors. We are proposing this AD to prevent oil vapor leakage from the APU AC generator, which, when combined with an electric arc at the electrical receptacle, could result in a fire or explosion in the APU compartment during flight.
We must receive comments on this proposed AD by November 22, 2004.
Use one of the following addresses to submit comments on this proposed AD.
•
•
•
•
•
For service information identified in this proposed AD, contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.
You can examine the contents of this AD docket on the Internet at
The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your
We will post all comments we receive, without change, to
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at
You can examine the AD docket on the Internet at
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on certain Airbus Model A319, A320, and A321 series airplanes. The DGAC advises that, one operator reported an explosion in the auxiliary power unit (APU) compartment when passengers were disembarking, which blew open the compartment doors. Analysis revealed that, due to vibrations in the APU alternating current (AC) generators, the retaining bolts of the electrical receptacle had loosened, causing oil vapor leakage. The DGAC also advises that additional reports were received of loose retaining bolts found during maintenance inspections. Oil vapor leakage, combined with an electric arc at the electrical receptacle, could result in a fire or explosion in the APU compartment during flight.
We have reviewed Airbus Service Bulletin A320-24-1106, dated May 26, 2003 (for Model A319, A320, and A321 series airplanes). The service bulletin describes procedures for modification of certain APU AC generators. The modification includes replacing the retaining bolts of the electrical receptacle with new, improved retaining bolts, locking the new bolts with tie wire; installing a new nameplate; and performing an operational test. The service bulletin also specifies modifying the APU AC generator, prior or concurrently with Airbus Service Bulletin A320-24-1082, Revision 01, dated March 15, 1996 (for Model A320 and A321 series airplanes). Accomplishing the actions specified in the Airbus service information is intended to adequately address the unsafe condition.
The DGAC mandated the Airbus service information and issued French airworthiness directive F-2004-019, dated February 4, 2004, to ensure the continued airworthiness of these airplanes in France.
Service Bulletin A320-24-1106 refers to Hamilton Sundstrand Service Bulletin 90EGS01AG-24-18, dated February 13, 2003, as an additional source of service information for accomplishment of the modification.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGACs findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require modification of certain APU AC generators. The proposed AD would require you to use the Airbus service information described previously to perform these actions.
This proposed AD would affect about 537 airplanes of U.S. registry.
For airplanes listed in Service Bulletin A320-24-1106: The proposed modification would take about 5 work hours per airplane, at an average labor rate of $65 per work hour. Required parts would be free of charge. Based on these figures, the estimated cost of the proposed modification for U.S. operators is $174,525, or $325 per airplane.
For airplanes listed in Service Bulletin A320-24-1082: The concurrent modification, if done, would take about 5 work hours per airplane, at an average labor rate of $65 per work hour. Required parts would be free of charge. Based on these figures, the estimated cost of the proposed modification for U.S. operators is $174,525, or $325 per airplane.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA 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 adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration (FAA) must receive comments on this AD action by November 22, 2004.
(b) None.
(d) This AD was prompted by a report of an explosion in the APU compartment which blew open the compartment doors. We are issuing this AD to prevent oil vapor leakage from the APU AC generator, which, when combined with an electric arc at the electrical receptacle, could result in a fire or explosion in the APU compartment during flight.
(f) For all airplanes: Within 20 months after the effective date of this AD, modify the APU AC generator by doing all the actions specified in the Accomplishment Instructions of Airbus Service Bulletin A320-24-1106, dated May 26, 2003. Do the actions in accordance with the service bulletin.
(g) For Model A320 and A321 series airplanes: Prior to or concurrently with accomplishing the modification required by paragraph (f) of this AD, do the modification of the APU AC generator specified in Airbus Service Bulletin A320-24-1082, Revision 01, dated March 15, 1996; by doing all the actions specified in the Accomplishment Instructions in accordance with the service bulletin. Prior accomplishment of the modification in accordance with Airbus Service Bulletin A320-24-1082, dated September 30, 1994, meets the requirements of this paragraph.
Airbus Service Bulletin A320-24-1106 refers to Hamilton Sundstrand Service Bulletin 90EGS01AG-24-18, dated February 13, 2003, as an additional source of service information for accomplishment of the modification required by paragraph (f) of this AD.
(h) As of the effective date of this AD, no person may install an APU AC generator having a part number listed in the old part number column specified in Paragraph 1.L. of Airbus Service Bulletin A320-24-1106, dated May 26, 2003; on any airplane, unless that generator has been modified in accordance with paragraphs (f) and (g) of this AD, as applicable.
(i) The Manager, International Branch, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(j) French airworthiness directive F-2004-019, dated February 4, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2004-10-15, which applies to certain GTX 330 and GTX 330D Mode S transponders that are installed on airplanes. AD 2004-10-15 currently requires you to install GTX 330/330D Software Upgrade Version 3.03, 3.04, or 3.05. This proposed AD applies to certain GTX 33, GTX 33D, GTX 330, and GTX 330D Mode S transponders that are installed on airplanes and is the result of observations that the GTX 33/33D/330/330D may detect, from other airplanes, the S1 (suppression) interrogating pulse below the minimum trigger level (MTL) and, in some circumstances, not reply. The GTX 33/33D/330/330D should still reply even if it detects S1 interrogating pulses below the MTL. Consequently, this proposed AD would require you to install GTX 33/33D/330/330D Software Upgrade Version 3.03 or 3.06. Software Upgrade Versions 3.03 and 3.06 correct a TAS, TCAD, and TCAS I system “whisper-shout” problem that could potentially lead to the aircraft not being visible at certain ranges. TCAS II systems are not affected. We are issuing this proposed AD to prevent interrogating aircraft from possibly receiving inaccurate replies due to suppression from aircraft equipped with the GTX 33/33D/330/330D Mode S transponders when the pulses are below the MTL. The inaccurate replies could result in reduced vertical separation.
We must receive any comments on this proposed AD by November 15, 2004.
Use one of the following to submit comments on this proposed AD:
•
•
•
•
•
To get the service information identified in this proposed AD, contact GARMIN International Inc. 1200 East 151st Street, Olathe, KS 66062; telephone: 913-397-8200.
To view the comments to this proposed AD, go to
Roger A. Souter, FAA, Wichita Aircraft Certification Office (ACO), 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: 316-946-4134; facsimile: 316-946-4107; email address:
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,
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) 2004-10-15, Amendment 39-13645 (69 FR 29212-15, dated May 21, 2004), and by adding a new AD to read as follows:
(a) We must receive comments on this proposed airworthiness directive (AD) by November 15, 2004.
(b) This AD supersedes AD 2004-10-15, Amendment 39-13645.
(c) This AD affects GARMIN International Inc. GTX 33, GTX 33D, GTX 330, and GTX 330D Mode S transponders that are installed on, but not limited to, the following airplanes, certificated in any category:
(d) This AD is the result of observations that the GTX 33/33D/330/330D may detect, from other airplanes, the S1 (suppression) interrogating pulse below the minimum trigger level (MTL) and, in some circumstances, not reply. The GTX 33/33D/330/330D should still reply even if it detects S1 interrogating pulses below the MTL. The actions specified in this AD are intended to prevent interrogating aircraft from possibly receiving inaccurate replies, due to suppression, from aircraft equipped with the GTX 33/33D/330/330D Mode S transponders when the pulses are below the minimum trigger level (MTL). Software Upgrade Versions 3.03 and 3.06 correct a TAS, TCAD, and TCAS I system “whisper-shout” problem that could potentially lead to the aircraft not being visible at certain ranges. TCAS II systems are not affected. The inaccurate replies could result in reduced vertical separation.
(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, Wichita Aircraft Certification Office (ACO), FAA. For information on any already approved alternative methods of compliance, contact Roger A. Souter, FAA, Wichita Aircraft Certification Office (ACO), 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: 316-946-4134; facsimile: 316-946-4107; e-mail address:
(g) To get copies of the documents referenced in this AD, contact GARMIN International Inc. 1200 East 151st Street, Olathe, KS 66062; telephone: 913-397-8200. To view the AD docket, go to 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
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Raytheon Aircraft Company, Model 390, Premier 1 airplanes. This proposed AD would require you to inspect the routing and security of the left and right main landing gear (MLG) squat switch wire harness installations for damage, repair any damage or replace components, and reinstall the squat switch wire harness. This proposed AD results from reports of damage to the left and/or right MLG wire harness assemblies, which resulted in various system failures/anomalies due to erroneous air/ground status signals. We are issuing this proposed AD to prevent damage to the wire harnesses, which could result in loss of lift dump, loss of pressurization, loss of transponder responses to interrogations, and failure of other systems utilizing air/ground status signals. 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:
•
•
•
•
•
To get the service information identified in this proposed AD, contact Raytheon Aircraft Company, PO Box 85, Wichita, Kansas 67201-0085; telephone: (800) 625-7043.
To view the comments to this proposed AD, go to
Philip Petty, Aerospace Engineer, ACE-119W, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: (316) 946-4139; facsimile: (316) 946-4107.
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 adding the following new airworthiness directive (AD):
(a) We must receive comments on this proposed airworthiness directive (AD) by November 16, 2004.
(b) None.
(c) This AD affects the following airplane model and serial numbers that are certificated in any category: Model 390 Premier I, Serials RB-1, RB-4 through RB-84, RB-87 through RB-90, RB-92 through RB-96, RB-99 through RB-101, and RB-103 through RB-106.
(d) This AD is the result of reports of damage to the left and/or right main landing gear (MLG) wire harness assemblies, which resulted in various system failures/anomalies due to erroneous air/ground status signals. The actions specified in this AD are intended to prevent damage to the wire harnesses, which could result in loss of lift dump, loss of pressurization, loss of transponder responses to interrogations, and failure of other systems utilizing air/ground status signals. 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, Wichita Aircraft Certification Office (ACO), FAA. For information on any already approved alternative methods of compliance, contact Philip Petty, Aerospace Engineer, ACE-119W, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: (316) 946-4139; facsimile: (316) 946-4107.
(g) To get copies of the documents referenced in this AD, contact Raytheon Aircraft Company, PO Box 85, Wichita, Kansas 67201-0085; telephone: (800) 625-7043. To view the AD docket, go to 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
Federal Aviation Administration, DOT.
Supplemental notice of proposed rulemaking (NPRM); Reopening of the comment period.
This document proposes to revise an earlier proposed airworthiness directive (AD) that would apply to all LET a.s. (formerly LET n.p.) (LET) Model Blanik L-13 AC sailplanes. The earlier NPRM would have required you to repetitively inspect the bedding of the front and rear control levers for cracks, and, if any cracks are found, replace with parts found free of cracks. The earlier NPRM resulted from mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for the Czech Republic. The MCAI is a report of one occurrence of cracks in the attachment of control levers on the control bridge. Since FAA issued the NPRM, FAA has received and evaluated new service information that eliminates the repetitive inspection, requires replacement of parts, and changes the serial number effectivity. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow the public the chance to comment on these additional actions.
The Federal Aviation Administration (FAA) must receive any
Submit comments to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-CE-57-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may view any comments at this location between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. You may also send comments electronically to the following address:
You may get service information that applies to this proposed AD from LET a.s., Kunovice 686 04, Czech Republic; telephone: +420 632 55 44 96; facsimile: +420 632 56 41 13. You may also view this information at the Rules Docket at the address above.
Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4130; facsimile: (816) 329-4090.
You would have to do the proposed actions following Letecke Zavody Mandatory Bulletin No.: L13/095a, dated October 18, 2001.
Since issuance of the NPRM, LET has issued the new Letecke Zavody Mandatory Bulletin No.: L13AC/014a, dated July 17, 2003. This service bulletin eliminates the repetitive inspection, requires the replacement of parts, and changes the serial number effectivity.
The CAA has not amended the Czech AD to reflect this service information. However, FAA has evaluated the new service information and determined that the NPRM should be changed to reflect the requirements in the new LET service bulletin.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) We must receive comments on this proposed airworthiness directive (AD) by November 8, 2004.
(b) None.
(c) This AD affects Model Blanik L-13 AC sailplanes, serial numbers 988601, 988603, 008605, 008606, and 028902, that are certificated in any category:
(d) This AD is the result of a report of one occurrence of cracks in the attachment of control levers on the control bridge. The actions specified in this AD are intended to correct cracks in the bedding of the front and rear control levers, which could result in failure of the control bridge for the sailplane. This failure could lead to loss of sailplane control.
(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, Standards Office, Small Airplane Directorate, FAA. For information on any already approved alternative methods of compliance, contact Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4130; facsimile: (816) 329-4090.
(g) You may get copies of the documents referenced in this AD from LET a.s., Kunovice 686 04, Czech Republic; telephone: +420 632 55 44 96; facsimile: +420 632 56 41 13. You may view these documents at FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106.
(h) Czech Airworthiness Directive CAA-AD-090/2001, dated October 25, 2001, also addresses the subject of this AD.
Food and Drug Administration, HHS.
Notification of public meetings.
The Food and Drug Administration (FDA) is announcing a series of public meetings to discuss the proposed rule for prevention of
Meetings will be held on October 28, 2004, in College Park, MD; on November 9, 2004, in Chicago, IL and on November 16, 2004, in Los Angeles, CA from 9 a.m. to 1 p.m. and registration will begin at 8 a.m.
FDA provided 90 days for submission of comments on the September 22, 2004 proposal. Written and electronic comments are due by December 21, 2004, and should be submitted in the manner prescribed in the
The following are a list of the upcoming meeting locations:
1. Thursday, October 28, 2004, Harvey W. Wiley Federal Building, Auditorium, 5100 Paint Branch Pkwy., College Park, MD.
2. Tuesday, November 9, 2004, Chicago Marriott Downtown Magnificent Mile, 540 North Michigan Ave., Chicago, IL.
3. Tuesday, November 16, 2004, Los Angeles Airport Marriott, 5855 West Century Blvd., Los Angeles, CA.
You may submit comments, identified by [Docket Nos. 1996P-0418, 1997P-0197, 1998P-0203, and 2000N-0504], by any of the following methods:
• Federal eRulemaking Portal:
• Agency Web site:
• E-mail:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Marion V. Allen, Center for Food Safety and Applied Nutrition (HFS-32), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-2428, FAX 301-436-2605, e-mail:
In the
Moreover, the most recent data from the Centers for Disease Control and Prevention (CDC) show that SE illnesses have essentially remained steady for the past several years. CDC estimated that 118,000 illnesses were caused by consumption of SE-contaminated eggs in 2001. Accordingly, FDA believes that further actions to improve egg safety, building upon the safe consumer handling labeling and egg refrigeration at retail rule of 2000, are the most effective way to achieve our public health goals of a 50 percent reduction in overall salmonellosis and a 50 percent reduction in SE outbreaks by 2010.
The proposed rule for SE prevention measures includes:
Provisions for procurement of chicks and pullets;
• A biosecurity program;
• A pest and rodent control program;
• Cleaning and disinfection of poultry houses that have had an environmental sample or egg test positive for SE before new laying hens are added to the house;
• Refrigerated storage of eggs at the farm;
• Producer testing of the environment for SE in poultry houses, if the environmental test is positive, FDA proposes that egg testing for SE be undertaken, and that, if an egg test is positive, the eggs be diverted from the table egg market;
• Identification of a person responsible for SE prevention at each farm;
• Recordkeeping requirements for environmental and egg sampling and testing and for egg diversion; and
•
The proposed rule and fact sheet are available on FDA's Web site at:
Please submit your registration information (including name, title, firm name, address, telephone number, e-mail address, and fax number) at least 7 business days before the meeting date. We encourage you to register online at
Attendees are encouraged to present their comments, concerns, and recommendations regarding the proposed rule at the public meeting. Attendees wishing to make a presentation will be allowed 5 minutes each. Please indicate when registering if you wish to make a presentation. Individuals and organizations that do not pre-register to make a presentation may have the opportunity to speak if time permits. While oral presentations from specific individuals and organizations will be limited during the public meeting, the written comments submitted as part of the administrative record may contain a discussion of any issues of concern. All relevant data and documentation should be submitted with the written comments.
A transcript of the proceedings from these public meetings, as well as all information and data submitted voluntarily to FDA during the public meetings, will become part of the administrative record and will be available to the public under 21 CFR 20.111 from FDA's Division of Dockets Management (HFA-305), 5630 Fishers Lane, rm. 1061, Rockville, MD 20852 at a cost of 10 cents per page. Summaries of the public meetings will also be available for public examination at FDA's Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Environmental Protection Agency (EPA).
Proposed rule.
Delaware has applied to EPA for final authorization of revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA proposes to grant final authorization to Delaware. In the “Rules and Regulations” section of this
Send your written comments by November 8, 2004.
Submit your comments, identified by FRL-7825-5 by one of the following methods:
1. Federal eRulemaking Portal:
2. E-mail:
3. Mail: Lillie Ellerbe, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.
4. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information.
You may inspect and copy Delaware's application from 8 a.m. to 4:30 p.m., Monday through Friday at the following addresses: Delaware Department of Natural Resources & Environmental Control, Division of Air & Waste Management, Solid and Hazardous Waste Management Branch, 89 Kings Highway, Dover, DE 19901, Phone number (302) 739-3689, attn: Karen J'Anthony, and EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-5254.
Lillie Ellerbe, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone Number: (215) 814-5454.
For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for
We will accept comments until December 6, 2004. Public hearing requests must be received by November 22, 2004.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, CA 92009.
2. You may hand-deliver written comments and information to our Carlsbad Fish and Wildlife Office, at the above address, or fax your comments to (760) 731-9618.
3. You may send your comments by electronic mail (e-mail) to
All comments and materials received, as well as supporting documentation used in preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the above address. Maps of essential habitat not included in the proposed critical habitat are available for viewing by appointment during regular business hours at the Carlsbad Fish and Wildlife Office (see
Mr. Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office (telephone (760) 431-9440; facsimile (760) 431-9618).
It is our intent that any final action resulting from this proposal will be as accurate as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. In the development of our final designation, we will incorporate or address any new information received during the public comment periods, or from our evaluation of the potential economic impacts of this proposal. As such, we may revise this proposal to address new information and/or to either exclude additional areas that may warrant exclusion pursuant to section 4(b)(2) or we designate additional areas determined to be essential to the species but excluded from this proposal. We particularly seek comments concerning:
(1) The reasons why any areas should or should not be determined to be critical habitat as provided by section 4 of the Act.
(2) Specific information on the amount and distribution of
(3) Land use designations and current or planned activities in or adjacent to the areas proposed and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other potential impacts resulting from the proposed designation, in particular, any impacts on small entities and;
(5) Whether our approach to designate critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
Some of the lands we have identified as essential for the conservation of the
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. Additionally, we have also found that comparable conservation can be achieved by implementation of laws and regulations obviating the need for critical habitat. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 36 percent (445 species) of the 1,244 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,244 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. The Service believes it is these measures that may make the difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion,
We have been overwhelmed with lawsuits regarding designation of critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA), all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.
It is our intent to discuss only those topics directly relevant to the identification and proposed designation of critical habitat for
There are approximately 30 species in the genus
One population has been reported from San Luis Obispo County, however, the identification of this population is thought to be in error (pers. comm. with Spencer 2004). Fewer than 45 populations exist in the United States (CNDDB 2004). Nearly 60 percent of the known populations are concentrated in three locations: Otay Mesa in southern San Diego County, along the San Jacinto River in western Riverside County, and near Hemet in Riverside County (Service 1998). The two largest populations occur in Riverside County and have been estimated to support 375,000 and 100,000 individuals respectively within 8 ac (3 ha) of habitat. Most other populations contain fewer than 1,000 individuals and occupy less than 1 ac (0.5 ha) of habitat. We estimate that less than 300 ac (120 ha) of habitat in the United States is occupied by this species (63 FR 54975). This estimate only quantifies the areas where the
It is estimated that greater than 90 percent of the vernal pool habitat in Southern California has been converted as a result of past human activities (Bauder and McMillan 1998; Keeler-Wolf
The final listing rule for
At the time of listing, we concluded that designation of critical habitat for
Section 3(5)(A) of the Act defines critical habitat as: (i) The specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the provisions of section 4 of [the] Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed in accordance with the provisions of section 4 of [the] Act, upon a determination that such areas are essential for the conservation of the species (Endangered Species Act (Act) 1973 (as amended)). “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary (Act 1973).
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat.
To be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (
Occupied habitat may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2).)
Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographic area occupied by the species.
Our Policy on Information Standards Under the Endangered Species Act, published in the
Critical habitat designations do not signal that habitat outside the designation is unimportant to
As required by section 4(b)(2) of the Act, we use the best scientific data available in determining areas that are essential to the conservation of
To map and define the areas listed in the Recovery Plan we used research and survey observations published in peer-reviewed articles, regional Geographic Information System (GIS) vegetation, soil, and species coverages, and data compiled in the CNDDB. Information about
The areas of essential habitat were then analyzed with respect to sections 4(a)(3) and 4(b)(2) of the Act, and any areas that should not be included or excluded from proposed critical habitat were identified.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to base critical habitat determinations on the best scientific data available and to consider those physical and biological features (primary constituent elements (PCEs)) that are essential to the conservation of the species, and that may require special management considerations or protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; water, air, light, minerals, or other nutritional or physiological requirements; space for growth, development and reproduction, including the space necessary for pollinators to live; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
The specific biological and physical features, otherwise referred to as the primary constituent elements, which comprise
Sufficient studies to reveal possible pollinators of
The distribution of
Pursuant to our regulations, we are required to identify the primary constituent elements essential to the conservation of
(1) Vernal pool, alkali grassland, alkali playa, or alkali sink habitats, at elevations between sea level and 4,250 ft (1,300 m), and on flat to gently sloping terrain.
(2) Clay soils that retain water for sufficient amounts of time, especially in the winter and spring months, to support vernal pool, alkali grassland, alkali playa, or alkali sink habitats; and
(3) Watershed area immediately surrounding vernal pool, alkali grassland, alkali playa, or alkali sink habitats with hydrology necessary to maintain these specialized habitats.
The majority of extant populations of
All areas of essential habitat for
When designating critical habitat, we assess whether the areas determined to be essential for conservation may require special management considerations or protection. Many of the sites where
Proposed critical habitat includes
Lands proposed as critical habitat are divided into five units (Units 1 through 5) based on the Management Areas in which the species occurs as identified in the Recovery Plan (Service 1998). Units 1, 4, and 5 were further divided into subunits (1A, 1B, 4A, 4B, 4C, 4D, 4E, 5A, 5B, 5C, 5D) based on their geographical location. Unit boundaries were delineated based on geographical location of vernal pools, soil types, associated watersheds, and local variation of topographic position (
The occurrences of
The proposed Transverse Range Critical Habitat Unit encompasses 596 ac (241 ha) within the Transverse Management Area as identified in the Recovery Plan, and includes the occupied vernal pools at Cruzan Mesa in Los Angeles County (Service 1998).
The San Diego North Coastal Mesas Critical Habitat Unit encompasses 143 ac (64 ha) within the San Diego North Coastal Mesas Management Area as identified in the Recovery Plan and includes occupied vernal pools on Camp Pendleton and one occupied pool complex in the City of Carlsbad (Service 1998). Essential habitat within training areas defined by the Department of Defense as “mission critical” in the Stuart Mesa area of the Oscar One Training Area on Camp Pendleton have been excluded from the proposed critical habitat designation pursuant to section 4(b)(2) of the Act.
Within the jurisdiction of the City of Carlsbad, one occupied vernal pool complex is located at the Poinsettia Lane train station. This complex is associated with a remnant of coastal terrace habitat and is considered essential for the conservation of the species in northern San Diego County. This pool is one of the last remaining coastal occurrences of
The San Diego Central Coast Mesas Critical Habitat Unit encompasses 143 ac (64 ha) within the San Diego Central Coast Mesas Management Area as identified in the Recovery Plan (Service 1998), and includes occupied vernal pools.
All four areas essential for the conservation of
Other pools in the Central Coast Mesas Management Area are included in the San Diego MSCP. This plan details a policy of “no-net-loss” for vernal pools (City of San Diego 1997). There is currently an effort to develop a management plan for vernal pools within the MSCP that provides conservation benefit to
The San Diego Inland Valleys Critical Habitat Unit encompasses 3,027 ac (1,225 ha) within the San Diego Inland Valleys Management Area as identified in the Recovery Plan (Service 1998). The five subunits proposed as critical habitat for
In the community of Ramona, one of the complexes is within the boundaries of Ramona Airport. These vernal pool complexes are isolated from maritime influence and are representative of vernal pools associated with alluvial or volcanic type soils (Keeler-Wolf
The San Diego Southern Coastal Mesas Critical Habitat Unit encompasses 392 ac (159 ha) within the Southern Coastal Mesas Management Area as identified in the Recovery Plan (Service 1998), and contains several vernal pools and other physiavl features essential to the conservation of
The majority of pools in this Unit are part of the San Diego MSCP. There is currently an effort to develop a management plan for vernal pools within the MSCP which will provide further conservation benefit to
Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. In our regulations at 50 CFR 402.2, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to: Alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” We are currently reviewing the regulatory definition of adverse modification in relation to the conservation of the species.
Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the action agency ensures that the permitted actions do not jeopardize the continued existence of the species or destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.
We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the
Activities on Federal lands that may affect
Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that appreciably reduce the value of critical habitat to
To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat to the listed species.
Federal agencies already consult with us on activities in areas currently occupied by the species to ensure that their actions do not jeopardize the continued existence of the species. These actions include, but are not limited to:
(1) Removing, thinning, or destroying
(2) Activities that appreciably degrade or destroy
(3) Activities that appreciably diminish habitat value or quality through indirect effects (
(4) Any activity, including the regulation of activities by the Corps of Engineers under section 404 of the Clean Water Act or activities carried out by or licensed by the Environmental Protection Agency (EPA), that could alter watershed or soil characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain
(5) Road construction and maintenance, right-of-way designation, and regulation of agricultural activities, or any activity funded or carried out by the Department of Transportation or Department of Agriculture that could result in discharge of dredged or fill material, excavation, or mechanized land clearing of
(6) Licensing of construction of communication sites by the Federal Communications Commission or funding of construction or development activities by the U.S. Department of Housing and Urban Development that could result in discharge of dredged or fill material, excavation, or mechanized land clearing of
(7) Funding and implementation of disaster relief projects by the FEMA and the Natural Resource Conservation Service's Emergency Watershed Program, including erosion control, flood control, and stream bank repair to reduce the risk of loss of property that could result in discharge of dredged or fill material, excavation, or mechanized land clearing of
All lands proposed as critical habitat are within the geographical area occupied by the species and are essential for the conservation of
Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species.
In our critical habitat designations, we have used the provisions outlined in section 4(b)(2) of the Act to evaluate lands essential to the conservation of the subject species for possible exclusion from proposed critical habitat. Lands which we have either excluded from or not included in critical habitat based on those provisions include those covered by: (1) Legally operative HCPs that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (2) draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective (
As described above, section 4(b)(2) of the Act requires us to consider other relevant impacts, in addition to economic and national security impacts, when designating critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed wildlife species incidental to otherwise lawful activities. Development of an HCP is a prerequisite for the issuance of an incidental take permit pursuant to section 10(a)(1)(B) of the Act. An incidental take permit application must be augmented by an HCP that identifies implementable conservation measures to implement for the species to minimize and mitigate the impacts of the permitted incidental take.
Some areas occupied by
Approved regional HCPs (
Completed HCPs and their accompanying Implementing Agreements (IA) contain management measures and protections for identified preserve areas that protect, restore, and enhance the value of these lands as habitat for
In approving these HCPs, we have provided assurances to permit holders that once the protection and management required under the plans are in place and for as long as the permit holders are fulfilling their obligations under the plans, no additional mitigation in the form of land or financial compensation will be required of the permit holders and in some cases, specified third parties.
Areas of essential habitat for
Portions of Units 3 and 5 are excluded from proposed critical habitat because they are within the San Diego MSCP in southwestern San Diego County. The San Diego MSCP effort encompasses approximately 582,000 ac (236,000 ha) and reflects the cooperative efforts of the local jurisdictions, the State, the building industry, and environmentalists. The San Diego MSCP provides for the establishment over the permit term of approximately 171,000 ac (69,573 ha) of preserve areas to provide conservation benefits for 85 federally listed and sensitive species. The San Diego MSCP and approved subarea plans provide measures to conserve
There are other regional NCCP/HCP efforts under way in southern California that have not yet been completed but which, upon approval, will provide conservation benefits to
A related benefit of excluding lands within HCPs from critical habitat designation is the continued ability by the Service to seek new partnerships. These may include future HCP participants, such as States, counties, local jurisdictions, conservation organizations, and private landowners. These entities together may implement conservation actions that we would be unable to accomplish otherwise.
An HCP or NCCP/HCP application must undergo section 7 consultation. While this consultation does not address adverse modification to critical habitat, it will determine if the HCP jeopardizes the species in the plan area. Federal actions not covered by the HCP, but in areas occupied by listed species, still require consultation under section 7 of the Act. HCPs and NCCP/HCPs typically provide greater conservation benefits to an addressed listed species than section 7 consultations because HCPs and NCCP/HCPs assure the long-term protection and management of a covered species and its habitat, and funding for such management through the standards found in the 5-Point Policy for HCPs (64 FR 35242). Such assurances are typically not provided by ordinary section 7 consultations which are limited to requiring that the specific action being consulted upon not jeopardize the continued existence of the species.
The Sikes Act Improvements Act of 1997 (Sikes Act) requires each military installation that includes land and water suitable for the conservation and management of natural resources to complete, by November 17, 2001, an Integrated Natural Resources Management Plan (INRMP). An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found there. INRMPs include an assessment of the ecological needs on the installation, including needs to provide for the conservation of listed species; a statement of goals and priorities; a description of management actions to be implemented to provide for these ecological needs; a monitoring plan, and an adaptive management plan.
Section 318 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136) amended the Endangered Species Act to address the relationship of INRMPs to critical habitat by adding a new section 4(a)(3)(B). This provision prohibits the Service from designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary of the Interior determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. MCAS Miramar has an INRMP in place that provides a benefit for
MCAS Miramar completed a final INRMP in May 2000 that provides a benefit to
Since the completion of MCAS Miramar's INRMP, we have received reports on Miramar's vernal pool monitoring and restoration program and correspondence detailing the installation's expenditures on the objectives outlined in its INRMP. MCAS Miramar continues to monitor and manage its vernal pool resources; programs include a study in progress on the effects of fire on vernal pool resources, vernal pool mapping and species surveys, and a study of Pacific bentgrass
Under 4(b)(2) of the Act, we have considered the effect of a critical habitat designation on national security and have determined that the benefits of exclusion outweigh the benefits of inclusion. We are, therefore, not proposing critical habitat on “mission-critical” training areas on Camp Pendleton. In this proposal we refer to areas designated as training areas on maps created by MCB, Camp Pendleton as “mission-critical” training areas.
The Marine Corps undertakes section 7 consultation of the Act for activities that may affect federally threatened or endangered species on Camp Pendleton. On March 30, 2000, a formal consultation was initiated between the Marine Corps and the Fish and Wildlife Service regarding their activities on upland areas of Camp Pendleton. The upland consultation that addresses vernal pool habitat,
To continue its critical training mission pending completion of the consultation, the Marine Corps has implemented measures to avoid jeopardy of
The primary benefit of proposing critical habitat is to identify lands essential to the conservation of the species which, if critical habitat was designated, would require consultation to ensure activities would not adversely modify critical habitat or jeopardize the continued existence of the species. We are in formal consultation with the Marine Corps on upland activities to ensure current and proposed actions will not jeopardize the species' continued existence. Therefore, we do not believe that designation of “mission-critical” training areas on Camp Pendleton as critical habitat will appreciably benefit
There are benefits to excluding areas on Camp Pendleton from critical habitat designation. Essential habitat for
If proposed critical habitat within training areas is included in a final designation, the Marine Corps would likely be compelled to review completed or in progress consultations to determine if activities may affect designated critical habitat. If ‘may affect’ determinations were made, the Marine Corps would be further obligated to initiate or reinitiate consultations with us.
We consider specific lands that provide benefits to
An analysis of the economic impacts of proposing critical habitat for
In accordance with our joint policy published in the
We will consider all comments and information received during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal.
The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the
Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is the description of the notice in the
Send a copy of any comments on how we could make this proposed rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may e-mail your comments to this address:
In accordance with Executive Order 12866, this document is significant in that it may raise novel legal and policy issues, but it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. The Office of Management and Budget (OMB) has not reviewed this rule. We are preparing a draft economic analysis of this proposed action, and will use the results of this analysis to meet the requirement of section 4(b)(2) of the Act to determine the economic consequences of designating the specific areas as critical habitat and possibly excluding any area from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of specifying such areas as part of the critical habitat, unless failure to designate such area as critical habitat will lead to the extinction of
Under the Regulatory Flexibility Act (5 U.S.C. 601
At this time, we lack the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, the RFA finding is deferred until completion of the draft economic analysis prepared pursuant to section 4(b)(2) of the Act and Executive Order 12866. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, we will publish a notice of availability of the draft economic analysis of the proposed designation and reopen the public comment period for the proposed designation. We will include with the notice of availability, as appropriate, an initial regulatory flexibility analysis or a certification that the rule will not have a significant economic impact on a substantial number of small entities accompanied by the factual basis for that determination. We have concluded that deferring the RFA finding until completion of the draft economic analysis is necessary to meet the purposes and requirements of the RFA. Deferring the RFA finding in this manner will ensure that we make a sufficiently informed determination based on adequate economic information and provides the necessary opportunity for public comment.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule to designate critical habitat for
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of federal assistance. ”It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates
The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely affect small governments because all of the areas designated for critical habitat are occupied by
In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. The designation of critical habitat affects only Federal agency actions. The rule will not increase or decrease the current restrictions on private property concerning take of
In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with DOI and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in California. The designation of critical habitat in areas currently occupied by
In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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.
It is our position that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no Tribal lands essential for the conservation of
A complete list of all references cited in this proposed rule is available upon request from the Carlsbad Fish and Wildlife Office (
The primary authors of this notice are the staff of the Carlsbad Fish and Wildlife Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.12(h) revise the entry for “
(h) * * *
3. In § 17.96(a), add critical habitat for
(a) Flowering plants.
(1) Critical habitat units and excluded essential habitat for
(2) The primary constituent elements of critical habitat for
(i) Vernal pool, alkali grassland, alkali playa, or alkali sink habitats, at elevations between sea level and 4,250 ft (1,300 m), and on flat to gently sloping terrain.
(ii) Clay soils that retain water for sufficient amounts of time, especially in the winter and spring months, to support vernal pool, alkali grassland, alkali playa, or alkali sink habitats.
(iii) Watershed area immediately surrounding vernal pool, alkali grassland, alkali playa, or alkali sink habitats with hydrology necessary to maintain these specialized habitats.
(3) Critical habitat for
(4) Lands determined to be essential to the conservation of
(i) All essential habitat where an operational Habitat Conservation Plan provides for the conservation of
(ii)
(5) Unit 1: Transverse Range Unit. Los Angeles County, California. From USGS 1:24,000 quadrangle map Mint Canyon, California.
(i) Unit 1A: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 368000, 3815300; 368400, 3815300; 368400, 3815200; 368600, 3815200; 368600, 3815100; 368700, 3815100; 368700, 3814700; 368600, 3814700; 368600, 3814600; 368400, 3814600; 368400, 3814500; 368200, 3814500; 368200, 3814300; 368300, 3814300; 368300, 3813700; 368200, 3813700; 368200, 3813500; 368100, 3813500; 368100, 3813300; 368000, 3813300; 368000, 3813100; 367400, 3813100; 367400, 3813200; 367300, 3813200; 367300, 3813800; 367100, 3813800; 367100, 3813900; 366900, 3813900; 366900, 3814100; 367000, 3814100; 367000, 3814200; 367100, 3814200; 367100, 3814300; 367200, 3814300; 367200, 3814400; 367300, 3814400; 367300, 3814500; 367400, 3814500; 367400, 3814700; 367500, 3814700; 367500, 3814800; 367600, 3814800; 367600, 3814900; 367700, 3814900; 367700, 3815000; 367800, 3815000; 367800, 3815100; 367900, 3815100; 367900, 3815200; 368000, 3815200; returning to 368000, 3815300.
(ii) Unit 1B: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 366000, 3813100; 366500, 3813100; 366500, 3812600; 366000, 3812600; returning to 366000, 3813100.
(iii)
(6) Unit 2: San Diego, North Coastal Mesas Unit. San Diego County, California. From USGS 1:24,000 quadrangle map Encinitas, California, land bounded by the following UTM 11 NAD27 coordinates (E, N): 470000, 3663800; 470200, 3663800; 470200, 3663700; 470300, 3663700; 470300, 3663600; 470500, 3663600; 470500, 3663300; 470600, 3663300; 470600, 3663100; 470700, 3663100; 470700, 3662900; 470800, 3662900; 470800, 3662200; 470500, 3662200; 470500, 3662300; 470400, 3662300; 470400, 3662900; 470300, 3662900; 470300, 3663100; 470200, 3663100; 470200, 3663400; 470100, 3663400; 470100, 3663700; 470000, 3663700; returning to 470000, 3663800.
(i)
(ii) (reserved)
(7) Unit 3: San Diego, Central Coastal Mesas Unit. San Diego County, California. From USGS 1:24,000 quadrangle map Rancho Santa Fe, California, land bounded by the following UTM 11 NAD27 coordinates (E, N): 485200, 3653600; 485600, 3653600; 485600, 3653200; 485700, 3653200; 485700, 3652900; 485300, 3652900; 485300, 3653000; 485200, 3653000; 485200, 3652700; 485000, 3652700; 485000, 3652800; 484700, 3652800; 484700, 3653200; 485000, 3653200; 485000, 3653500; 485200, 3653500; returning to 485200, 3653600; excluding lands approved within the San Diego-area Multiple Species Conservation Program, County of San Diego Subarea Plan.
(8) Unit 4: San Diego, Inland Valleys Unit. San Diego County, California. From USGS 1:24,000 quadrangle maps Ramona, San Marcos, and San Pasqual, California.
(i) Unit 4A: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 481800, 3667300; 482000, 3667300; 482000, 3667100; 481800, 3667100; returning to 481800, 3667300.
(ii) Unit 4B: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 482500, 3667500; 482800, 3667500; 482800, 3667300; 482600, 3667300; 482600, 3667100; 482400, 3667100; 482400, 3667000; 482200, 3667000; 482200, 3667200; 482300, 3667200; 482300, 3667400; 482500, 3667400; returning to 482500, 3667500.
(iii) Unit 4C: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 481600, 3666800; 481900, 3666800; 481900, 3666700; 482100, 3666700; 482100, 3666500; 482000, 3666500; 482000, 3666300; 481900, 3666300; 481900, 3666100; 482000, 3666100; 482000, 3665900; 481900, 3665900; 481900, 3665800; 481700, 3665800; 481700, 3665900; 481600, 3665900; 481600, 3666100; 481400, 3666100; 481400, 3666300; 481800, 3666300; 481800, 3666400; 481600, 3666400; 481600, 3666500; 481500, 3666500; 481500, 3666600; 481600, 3666600; returning to 481600, 3666800.
(iv) Unit 4D: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 482800, 3666600; 483000, 3666600; 483000, 3666400; 482800, 3666400; returning to 482800, 3666600.
(v) Unit 4E: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 508400, 3657000; 509000, 3657000; 509000, 3656200; 509300, 3656200; 509300, 3656000; 509800, 3656000; 509800, 3655500; 509500, 3655500; 509500, 3655000; 509300, 3655000; 509300, 3653700; 509600, 3653700; 509600, 3653800; 509700, 3653800; 509700, 3653900; 509800, 3653900; 509800, 3654000; 509900, 3654000; 509900, 3654100; 510000, 3654100; 510000, 3654200; 510100, 3654200; 510100, 3654300; 510200, 3654300; 510200, 3654400; 510300, 3654400; 510300, 3654500; 510400, 3654500; 510400, 3654600; 510500, 3654600; 510500, 3654800; 511300, 3654800; 511300, 3655100; 511200, 3655100; 511200, 3655400; 511400, 3655400; 511400, 3655300; 511500, 3655300; 511500, 3655100; 511600, 3655100; 511600, 3655200; 511800, 3655200; 511800, 3655000; 511700, 3655000; 511700, 3654800; 511600, 3654800; 511600, 3654700; 511900, 3654700; 511900, 3654500; 512000, 3654500; 512000, 3654600; 512200, 3654600; 512200, 3654700; 512300, 3654700; 512300, 3654800; 512500, 3654800; 512500, 3654900; 512700, 3654900; 512700, 3654800; 512600, 3654800; 512600, 3654400; 512500, 3654400; 512500, 3654300; 512000, 3654300; 512000, 3653900; 511900, 3653900; 511900, 3653800; 511700, 3653800; 511700, 3654500; 510800, 3654500; 510800, 3654400; 510700, 3654400; 510700, 3654200; 510500, 3654200; 510500, 3654100; 510400, 3654100; 510400, 3654000; 510300, 3654000; 510300, 3653900; 510200, 3653900; 510200, 3653800; 510100, 3653800; 510100, 3653700; 510000, 3653700; 510000, 3653600; 510200, 3653600; 510200, 3653400; 510100, 3653400; 510100, 3653200; 510500, 3653200; 510500, 3653000; 509000, 3653000; 509000, 3654000; 508500, 3654000; 508500, 3654200; 506500, 3654200; 506500, 3654500; 505500, 3654500; 505500, 3654700; 504400, 3654700; 504400, 3654800; 504000, 3654800; 504000, 3655000; 505000, 3655000; 505000, 3655900; 505500, 3655900; 505500, 3655700; 506000, 3655700; 506000, 3655600; 506800, 3655600; 506800, 3656400; 506900, 3656400; 506900, 3656600; 507200, 3656600; 507200, 3656500; 507400, 3656500; 507400, 3656600; 507900, 3656600; 507900, 3656700; 508000, 3656700; 508000, 3656900; 508400, 3656900; returning to 508400, 3657000.
(vi)
(9) Unit 5: San Diego, Southern Coastal Mesas Unit. San Diego County, California. From USGS 1:24,000 quadrangle maps Imperial Beach, Jamul Mountains, and Otay Mesa, California.
(i) Unit 5A: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 501000, 3616800; 501200, 3616800; 501200, 3616600; 501300, 3616600; 501300, 3616400; 501400, 3616400; 501400, 3616100; 501200, 3616100; 501200, 3615800; 501000, 3615800; 501000, 3615700; 500800, 3615700; 500800, 3616200; 501000, 3616200; 501000, 3616400; 501100, 3616400; 501100, 3616600; 500900, 3616600; 500900, 3616500; 500800, 3616500; 500800, 3616400; 500600, 3616400; 500600, 3616300; 500400, 3616300; 500400, 3616200; 500300, 3616200; 500300, 3616400; 500200, 3616400; 500200, 3616500; 500500, 3616500; 500500, 3616700; 501000, 3616700; returning to 501000, 3616800; excluding lands approved within the San Diego Multiple Species Conservation Program.
(ii) Unit 5B: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 500000, 3608000; 500200, 3608000; 500200, 3607600; 499900, 3607600; 499900, 3607700; 499600, 3607700; 499600, 3607900; 500000, 3607900; returning to 500000, 3608000; excluding lands approved within the San Diego Multiple Species Conservation Program.
(iii) Unit 5C: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 506700, 3606800; 506900, 3606800; 506900, 3606500; 507000, 3606500; 507000, 3606300; 506900, 3606300; 506900, 3606000; 506700, 3606000; 506700, 3606100; 506600, 3606100; 506600, 3606300; 506500, 3606300; 506500, 3606600; 506700, 3606600; returning to 506700, 3606800; excluding lands approved within the San Diego Multiple Species Conservation Program.
(iv) Unit 5D: Land bounded by the following UTM 11 NAD27 coordinates (E, N): 499500, 3601300; 500400, 3601300; 500400, 3600600; 499700, 3600600; 499700, 3600500; 499500, 3600500; returning to 499500, 3601300; excluding lands approved within the San Diego-area Multiple Species Conservation Program, City of San Diego Subarea Plan.
(v)
Fish and Wildlife Service, Interior.
Proposed rule.
The San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox were listed as endangered species under the Endangered Species Act of 1973, as amended (Act), on March 5, 2004. We do not find any habitat on the four islands occupied by the foxes that meets the definition of critical habitat under the Act. Because there is no habitat that meets the definition of critical habitat for the island fox subspecies, there is none to propose, and we are proposing that zero critical habitat be designated.
We solicit data and comments from the public on all aspects of this proposed finding. Unless we receive information during the comment period that indicates there is habitat which meets the definition of critical habitat, we will not be preparing an economic analysis.
We will consider comments received by December 6, 2004.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003.
2. You may hand-deliver written comments to our Ventura Office, at the address given above.
3. You may send comments by electronic mail (e-mail) to:
4. You may fax your comments to 805/644-3958.
The complete file for this finding is available for public inspection, by appointment, during normal business hours at the Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.
For the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox, contact Diane Noda, Field Supervisor, Ventura Fish and Wildlife Office at the address given above (telephone 805/644-1766; facsimile 805/644-3958). For the Santa Catalina Island fox, contact Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA (telephone 760/431-9440; facsimile 760/431-9624).
In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs). The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 445 species or 36 percent of the 1,244 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,244 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion,
We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA). None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.
The Island fox is taxonomically divided into six subspecies that are each limited in range to a single island (Gilbert
On December 10, 2001, we published a proposal to list four subspecies of island fox as endangered (66 FR 63654). Please refer to this proposed rule for information on Federal actions prior to December 10, 2001. On April 22, 2003, the Center for Biological Diversity filed suit against the Service for failure to finalize the listing and for failure to publish a final determination regarding critical habitat (
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that we designate critical habitat, to the maximum extent prudent and determinable, at the time a species is listed as endangered or threatened. Designation is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.
Critical habitat is defined in section 3(5)(a) of the Act as: (i) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.
In the March 5, 2004, final listing rule, we determined that designation of critical habitat was prudent for the island foxes. As discussed more fully below, we now find there are no “specific areas on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection.” Further, there are no “specific areas outside the geographical area occupied by [the] species at the time it [was] listed that are essential for the conservation of the species.”
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features (primary constituent elements (PCEs)) that are essential to the conservation of the species, and that may require special management considerations and protection. These include, but are not limited to: space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
The island fox, however, is a habitat generalist in all aspects of its life history. It does not require particular habitats for food, cover, breeding, and denning sites. The foxes are opportunistic omnivores, and eat a wide variety of plants (
Adverse effects to the fox that have occurred in these areas have been a result of activities, such as disease (canine distemper) and predation from golden eagles, which threaten individual island foxes rather than island fox habitat. While the habitat of
As discussed, declines have been caused largely by predation and disease, and these effects will be addressed through section 7 consultation with Federal agencies under the jeopardy standard of the Act and through the section 9 prohibitions of the Act to the extent applicable. No benefit would accrue from a critical habitat designation with respect to the effects of predation and disease on individual foxes because the regulatory effects of critical habitat designations apply to adverse modification or destruction of habitat, not to effects that result in mortality of individual foxes. Although not relevant to our determination with regard to critical habitat, we note that the threats that do exist will also be addressed by the conservation actions of the National Park Service (NPS), the Nature Conservancy, and the Catalina Island Conservancy on the islands. Moreover, again because the threats faced by the species are not habitat-based, there would be no informational benefit to the designation.
In accordance with the Act, a critical habitat designation can include areas outside the species' current range if we determine that these areas are essential to the conservation of the species. We have not found any areas outside the current range of the species to be essential for the conservation of the species. Our best data suggests that on all the islands with the exception of San Miguel, the island fox subspecies still occupy all island-based habitat,
In summary, we do not find any habitat within the islands that meets the definition of critical habitat. Because there is no habitat that meets the definition of critical habitat for the island fox subspecies, there is none to propose, and we are proposing that zero critical habitat be designated.
In accordance with Executive Order 12866, this document is a significant rule in that it may raise novel legal and policy issues, but it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. This rule does not designate critical habitat. Unless we receive information during the comment period that indicates there is habitat which meets the definition of critical habitat, we will not be preparing an economic analysis.
Unless we receive information during the comment period that indicates there is habitat which meets the definition of critical habitat, we will not be preparing an economic analysis. If we prepare an economic analysis, our assessment of economic effect will be completed prior to final rulemaking based upon review of the draft economic analysis prepared pursuant to section 4(b)(2) of the ESA and E.O. 12866.
On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule does not designate critical habitat for the four island fox subspecies. Therefore, no regulatory effects will derive from this action; it is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
We are not designating critical habitat in this proposed rule, and therefore, this proposed designation of critical habitat for the four island fox subspecies does not pose significant takings implications.
We are not designating critical habitat in this proposed rule, and therefore, this proposed designation of critical habitat for the four island fox subspecies does not have significant Federalism effects. A Federalism assessment is not required.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are not designating critical habitat in accordance with the provisions of the
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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.
We are not proposing to designate any areas as critical habitat. It is our position that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the National Environmental Policy Act in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's Manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We are not proposing to designate any areas as critical habitat. No tribal lands are essential for the conservation of the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox.
A complete list of all references cited in this proposed rule is available upon request from the Ventura Fish and Wildlife Office (
The primary author of this notice is the staff of the U.S. Fish and Wildlife Service.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.11(h) revising the entries for “Fox, San Miguel Island, Santa Catalina Island, Santa Cruz Island, Santa Rosa Island” under “MAMMALS” in the list of Endangered and Threatened Wildlife to read as follows:
(h) * * *
3. Amend part 17 by adding a new § 17.97 to read as follows:
This section includes animal and plant species for which we have determined critical habitat to be prudent, but for which we did not designate critical habitat under the Act for policy and statutory reasons. We identify these species, their primary constituent elements, and the specific habitat areas essential to their conservation to further public awareness and conservation efforts.
(a)
(1) Fox, San Miguel Island (
(i) No primary constituent elements have been identified for the San Miguel Island fox.
(ii) There are no specific habitat areas essential to the conservation of this species.
(2) Fox, Santa Catalina Island (
(i) No primary constituent elements have been identified for the Santa Catalina Island fox.
(ii) There are no specific habitat areas essential to the conservation of this species.
(3) Fox, Santa Cruz Island (
(i) No primary constituent elements have been identified for the Santa Cruz Island fox.
(ii) There are no specific habitat areas essential to the conservation of this species.
(4) Fox, Santa Rosa Island (
(i) No primary constituent elements have been identified for the Santa Rosa Island fox.
(ii) There are no specific habitat areas essential to the conservation of this species.
(b) [Reserved]
Fish and Wildlife Service, Interior.
Proposed rule; reopening of public comment period and notice of availability of draft economic analysis.
We, the U.S. Fish and Wildlife Service (Service) announce the availability of a draft economic analysis for the proposed designation of critical habitat for the California tiger salamander (
We will accept all comments received on or before November 8, 2004. Any comments that we receive after the closing date may not be considered in the final decision on this proposal.
If you wish to comment, you may submit your comments and materials concerning this proposed rule by any one of several methods:
(1) You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003, or by facsimile 805/644-3958.
(2) You may hand-deliver written comments to our office, at the address given above.
(3) You may send comments by electronic mail (e-mail) to
Comments and materials received, as well as supporting documentation used in preparation of the proposed critical habitat rule, will be available for public inspection, by appointment, during normal business hours at the above address. You may obtain copies of the draft economic analysis for the California tiger salamander in Santa Barbara County by contacting the Ventura Fish and Wildlife Office at the above address. The draft economic analysis and the proposed rule for critical habitat designation also are available on the Internet at
Katie Drexhage (telephone 805/549-3811; facsimile 805/549-3233 or Michael McCrary (telephone 805/644-1766; facsimile 805/644-3958), Ventura Fish and Wildlife Office, at the address listed above.
The California tiger salamander is a large and stocky salamander, with a broad, rounded snout. Adult males may reach a total length of 8.2 inches (in) (20.8 centimeters (cm)) while females are slightly smaller, reaching about 6.8 in (17.3 cm) in length. The top of the salamander can have white or pale yellow spots or bars on a black background. The underside varies from almost uniform white or pale yellow to a varying pattern of white or pale yellow and black. This species is restricted to California and does not overlap with any other species of tiger salamander. The Santa Barbara County salamanders are geographically separate from all other California tiger salamanders. Historically, the Santa Barbara County California tiger salamanders inhabited low-elevation (below 1,400 feet (427 meters)) vernal pools and ephemeral ponds, and associated coastal scrub, grassland, and oak savannah plant communities of the Santa Maria, Los Alamos, and Santa Rita valleys.
The loss of the California tiger salamander's upland habitat is the single most important factor contributing to the species' status. Additional threats to this species include threats to the aquatic habitat, predation and competition by introduced or non-native species, habitat fragmentation, contaminants, hybridization with non-native tiger salamanders, disease, and over-grazing.
On January 19, 2000, we published an emergency rule to list the Santa Barbara County DPS of the California tiger salamander as endangered (65 FR 3096), concurrently with a proposed rule (65 FR 3110) to list the species as endangered. We published a final rule listing the Santa Barbara County DPS of the California tiger salamander as endangered on September 21, 2000 (65 FR 57242). On May 23, 2003, we proposed to list the Central California population of California tiger salamander as a threatened DPS. In the same
On February 25, 2003, the Environmental Defense Center and Center for Biological Diversity filed a complaint challenging our failure to designate critical habitat for the Santa Barbara County DPS of the California tiger salamander (
Critical habitat identifies specific areas, both occupied and unoccupied, that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions pursuant to section 7(a)(2) of the Act.
Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We have prepared a draft economic analysis for the proposal to designate certain areas as critical habitat for the California tiger salamander. This analysis considers the potential economic effects of our proposed designation. It also considers the economic effects of protective measures taken as a result of listing the species under the Act, and other Federal, State, and local laws that aid habitat conservation in areas proposed for designation.
The majority of these areas occur on privately owned land. We know of no Federal, State, tribal, or military lands within proposed critical habitat. A small portion of land within one unit is owned by local jurisdictions, including the county of Santa Barbara and the Laguna County Sanitation District. The economic analysis addresses the impacts of California tiger salamander conservation efforts on activities occurring on lands proposed for designation. The analysis measures lost economic efficiency associated with real estate development, grazing activities, agriculture, vineyards, road construction projects, utility and other infrastructure projects, as well as the California Environmental Quality Act (CEQA) requirements, uncertainty, and project delay.
There is a great deal of uncertainty in estimating the impact of California tiger salamander-related conservation activities in the future. For example, the economic analysis projects significant future cost to private developers as a result of California tiger salamander conservation activities even though these costs have been relatively minimal in the past. For some activities the analysis estimates an upper-bound cost estimate, for others a conservative approach is taken to reach a best estimate. The implicit lower-bound cost estimate predicts no impact.
Total efficiency costs (
We intend any final action resulting from this proposal to be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning the economic analysis or the proposed rule. We particularly seek comments concerning:
(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of excluding outweigh benefits of including any area as critical habitat;
(2) Specific information on the amount and distribution of California tiger salamander habitat, and what habitat is essential to the conservation of this species and why;
(3) Land use designations and current or planned activities in the subject area and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities;
(5) Whether the economic analysis identifies all State and local costs. If not, what costs are overlooked;
(6) Whether the economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;
(7) Whether the economic analysis correctly assesses the effect on regional costs associated with land use controls that derive from the designation;
(8) Whether the designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from the final designation;
(9) Whether the economic analysis appropriately identifies all costs that could result from the designation;
(10) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments;
(11) What the likely benefits of designating critical habitat are and whether the economic analysis appropriately captures those economic benefits that are susceptible to quantification;
(12) Any suggestions to improve our economic analysis particularly with regard to its consideration of the foreseeable economic benefits of critical habitat designation; and
(13) Any suggestions to improve our ability to identify the noneconomic benefits of designating a particular area as critical habitat to enable a more comprehensive and informed analysis of the economic and other relevant impacts of designation.
All comments and information submitted during the previous comment periods on the proposed rule need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning this rule by any one of several methods (
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this
The primary author of this notice is the Ventura Fish and Wildlife Office staff (
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Forest Service, USDA.
Notice of meeting.
The Lake County Resource Advisory Committee (RAC) will hold a meeting.
The meeting will be held on October 14, 2004, from 3:30 p.m. to 5:30 p.m.
The meeting will be held at the Lake County Board of Supervisor's Chambers at 255 North Forbes Street, Lakeport.
Debbie McIntosh, Committee Coordinator, USDA, Mendocino National Forest, Upper Lake Ranger District, 10025 Elk Mountain Road, Upper Lake, CA 95485. (707) 275-2361; e-mail
Agenda items to be covered include: (1) Review and approval of the minutes of the August 26, 2004 meeting; (2) Discuss other business for 2004; (3) Results from the Lake County Supervisor's Meeting; (4) Letters to Congress on retention of the RACs; (5) Discuss project cost accounting USFS/County of Lake; (6) Set next meeting date and (7) Public Comment period. The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Natural Resources Conservation Service (NRCS), Agriculture.
Notice of availability of proposed changes in Section IV of the FOTG of the NRCS in Indiana for review and comment.
It is the intention of NRCS in Indiana to issue five revised conservation practice standards in Section IV of the FOTG. The revised standards are: Animal Mortality Facility (316); Composting Facility (317); Closure of Waste Impoundment (360); Stripcropping (585) and Underground Outlet (620). These practices may be used in conservation systems that treat highly erodible land and/or wetlands.
Comments will be received for a 30-day period commencing with this date of publication.
Address all requests and comments to Jane E. Hardisty, State Conservationist, Natural Resources Conservation Service (NRCS), 6013 Lakeside Blvd., Indianapolis, Indiana 46278. Copies of this standard will be made available upon written request. You may submit your electronic requests and comments to
Jane E. Hardisty, 317-290-3200.
Section 343 of the Federal Agriculture Improvement and Reform Act of 1996 states that after enactment of the law, revisions made to NRCS state technical guides used to carry out highly erodible land and wetland provisions of the law, shall be made available for public review and comment. For the next 30 days, the NRCS in Indiana will receive comments relative to the proposed changes. Following that period, a determination will be made by the NRCS in Indiana regarding disposition of those comments and a final determination of changes will be made.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights that a conference call of the New Jersey Advisory Committee will convene at 11 a.m. and adjourn at 12 p.m., Wednesday, October 20, 2004. The purpose of the conference call is to conduct project planning.
This conference call is available to the public through the following call-in number: 1-800-473-8693, access code: 26575727. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls not initiated using the supplied call-in number or over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls using the call-in number over land-line connections. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and access code.
To ensure that the Commission secures an appropriate number of lines for the public, persons are asked to register by contacting Ivy L. Davis of the Eastern Regional Office at 202-376-7533 by 4 p.m. on Tuesday, October 19, 2004.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Bureau of Economic Analysis.
Notice of public meeting.
Pursuant to the Federal Advisory Committee Act (Public Law 92-463 as amended by Public Law 94-409, Public Law 96-523, and Public Law 97-375), we are giving notice of a meeting of the Bureau of Economic Analysis Advisory Committee. The meeting's agenda is as follows: 1. Welcome and Update on BEA Activities, 2. Measuring the Real Output of Government: The Case of Education, 3. Profits, Pensions, and Compensation, 4. Researchers and Getting Access to BEA Data, and 5. International Outsourcing and Other Issues.
Friday, November 5, 2004, the meeting will begin at 9 a.m. and adjourn at approximately 4 p.m.
The meeting will take place at the Washington Plaza Hotel, 10 Thomas Circle, NW., Washington, DC 20005.
J. Steven Landefeld, Director, Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; telephone number: (202) 606-9600.
The Committee was established September 2, 1999, to advise the Bureau of Economic Analysis (BEA) on matters related to the development and improvement of BEA's regional economic accounts and proposed revisions to the International System of National Accounts. This will be the Committee's eighth meeting.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from Brazil in response to a request by respondent Companhia Sidergica Nacional (“CSN”). The review covers shipments to the United States during the period March 1, 2003, to February 29, 2004. For the reasons discussed below, we are fully extending the preliminary results of this administrative review by 120 days, to not later than March 31, 2005. This extension is made pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended.
October 7, 2004.
Helen Kramer or Kristin Najdi at (202) 482-0405 or (202) 482-8221, respectively; Antidumping and Countervailing Duty Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On March 31, 2004, in response to the Department's notice of opportunity to request a review published in the
On April 28, 2004, the Department published the notice initiating administrative review of CSN.
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(h)(2), the Department may extend the deadline for completion of the preliminary results of a review if it determines that it is not practicable to complete the preliminary results within 245 days after the last day of the anniversary month of the date of publication of the order for which the administrative review was requested. The Department has determined it is not practicable to complete this review within the originally anticipated time limit, in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2), because of complex cost and further manufacturing issues. Therefore, the Department is extending the time limits for the preliminary results by 120 days, to not later than March 31, 2005. The deadline for the final results of this review will continue to be 120 days after publication of the preliminary results.
Import Administration, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (the Department) is extending the time limit for the final results of the new shipper review of the antidumping duty order on petroleum wax candles from the People's Republic of China for Shandong Huihe Trade Co. Inc. (Shandong Huihe) by 139 days until no later than December 20, 2004. The period of review is August 1, 2002 through July 31, 2003. This extension is made pursuant to section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (the Act).
October 7, 2004.
Scott Lindsay or Dana Mermelstein, Office of AD/CVD Operations VI, Import
Section 751(a)(2)(B)(iv) of the Act requires the Department to issue the final results of a new shipper review within 90 days after the date on which the preliminary results were issued. However, if the Department determines that the issues are extraordinarily complicated, section 751(a)(2)(B)(iv) of the Act allows the Department to extend the deadline for the final results to up to 150 days after the date on which the preliminary results were issued.
On August 12, 2003, the Department received a timely filed request from Shandong Huihe for a new shipper review under the order on petroleum wax candles from the People's Republic of China, in accordance with section 751(a)(2)(B) of the Act and section 351.214(c) of the Department's regulations. In its request, Shandong Huihe certified that it both produced and exported the petroleum wax candles that are subject to review. On September 30, 2003, the Department initiated this new shipper review for the period August 1, 2002 through July 31, 2003.
On March 11, 2004, the Department extended the preliminary results of this new shipper review by 120 days until July 26, 2004.
Pursuant to section 751(a)(2)(B)(iv) of the Act, the Department may extend the deadline for completion of the final results of a new shipper review if it determines that the case is extraordinarily complicated. The Department has determined that this case is extraordinarily complicated because of the issues that must be addressed pertaining to the
This notice is published pursuant to sections 751(a)(2)(B) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Publication of quarterly update to annual listing of foreign government subsidies on articles of cheese subject to an in-quota rate of duty.
The Department of Commerce, in consultation with the Secretary of Agriculture, has prepared its quarterly update to the annual list of foreign government subsidies on articles of cheese subject to an in-quota rate of duty during the period April 1 2004, through June 30, 2004. We are publishing the current listing of those subsidies that we have determined exist.
October 7, 2004.
Tipten Troidl, Office of AD/CVD Enforcement III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230, telephone: (202) 482-2786.
Section 702 of the Trade Agreements Act of 1979 (as amended) (“the Act”) requires the Department of Commerce (“the Department”) to determine, in consultation with the Secretary of Agriculture, whether any foreign government is providing a subsidy with respect to any article of cheese subject to an in-quota rate of duty, as defined in section 702(h) of the Act, and to publish an annual list and quarterly updates of the type and amount of those subsidies. We hereby provide the Department's quarterly update of subsidies on articles of cheese that were imported during the period April 1, 2004, through June 30, 2004.
The Department has developed, in consultation with the Secretary of Agriculture, information on subsidies (as defined in section 702(h) of the Act) being provided either directly or indirectly by foreign governments on articles of cheese subject to an in-quota rate of duty. The appendix to this notice lists the country, the subsidy program or programs, and the gross and net amounts of each subsidy for which information is currently available. The Department will incorporate additional programs which are found to constitute subsidies and additional information on the subsidy programs listed, as the information is developed.
The Department encourages any person having information on foreign government subsidy programs which benefit articles of cheese subject to an in-quota rate of duty to submit such information in writing to the Assistant Secretary for Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
This determination and notice are in accordance with section 702(a) of the Act.
The U.S. Department of Commerce Office of Manufacturing is hosting an outreach meeting to discuss the 3Rs Initiative (Reduce waste, Reuse and Recycle) that was introduced by the Government of Japan and supported by the U.S. at the 2004 G8 summit in Sea Island, Georgia. The following objectives for the Initiative were established by the G-8 nations.
(1) Reduce waste, reuse and recycle resources and products to the extent feasible
(2) Reduce barriers to the international flow of goods and materials for recycling and remanufacturing, recycled and remanufactured products, and cleaner, more efficient technologies, consistent with existing environmental and trade obligations and frameworks;
(3) Encourage cooperation among various stakeholders (central governments, local governments, the private sector, NGOs and communities), including voluntary and market-based activities;
(4) Promote science and technology suitable for 3Rs; and
(5) Cooperate with developing countries in such areas as capacity building, raising public awareness, human resource development and implementation of recycling projects.
It was further agreed at Sea Island that Japan would host a Ministerial level conference on the Initiative. This has been scheduled by the Government of Japan for April 28-30, 2005 in Tokyo. The White House Council on Environmental Quality (CEQ) is leading an interagency effort to determine what the United States shall attempt to accomplish through the 3Rs Initiative and the policy approaches for the Ministerial Conference. Joseph H. Bogosian, the Deputy Assistant Secretary for Manufacturing at the U.S. Department of Commerce, is hosting this meeting in order to solicit input from all interested stakeholders including representatives of manufacturers, retailers, recyclers, and environmental organizations.
The following points may be useful as an aide for discussion:
1. Definition of “re-used” goods. Varying industries define it differently:
(a) Remanufactured;
(b) Refurbished; and
(c) “Re-used” as distinguished from “used” goods.
2. Trade and Market Access Issues (impacting inbound products and exports).
3. Standards Issues.
4. Recycling Incentives.
5. Possible Models:
(a) Product approach;
(b) Process approach.
6. Best Practices from Earlier Trade Agreements, and Existing Legal and Regulatory Barriers.
7. Benefits to:
(a) The Environment;
(b) The Economy and Jobs.
The event is open to the public and the press. Please RSVP and submit any written comments to
Thursday, October 14, 2004.
1 p.m.-4 p.m.
U.S. Department of Commerce Auditorium, 1401 Constitution Ave, NW., Washington, DC 20230. Enter through the Department of Commerce main entrance on 14th Street between Constitution and Pennsylvania Avenues. Bring a photo ID for security purposes. This meeting is physically accessible to people with disabilities.
Sarah E. Aker, Office of the Deputy Assistant Secretary for Manufacturing, Department of Commerce, Room 2132, 1401 Constitution Ave., Washington, DC 20230 (phone: (202) 482-1124).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings; request for comments.
The Gulf of Mexico Fishery Management Council (Council) will hold nine public hearings to inform the public and obtain comments on drafts of Amendment 15 to the Coastal Migratory Pelagics Fishery Management Plan (FMP) and Amendment 24 to the Reef Fish FMP.
The meetings will be held in October 2004. See
See
Written comments should be sent to the Gulf of Mexico Fishery Management Council, 3018 North U.S. Highway 301, Suite 1000, Tampa, FL 33619. Comments may also be submitted via e-mail to
Copies of the draft amendments are available by contacting the Gulf of Mexico Fishery Management Council at the mailing address or e-mail address specified above.
Rick Leard, Deputy Executive Director, Gulf of Mexico Fishery Management Council; telephone: 813-228-2815.
The Council will hold nine public hearings to solicit public input on drafts of Amendment 15 to the Coastal Migratory Pelagics FMP and Amendment 24 to the Reef Fish FMP (see
Public hearings will be held at the following dates and locations beginning at 7 p.m. and concluding no later than 10 p.m.:
1. Monday, October 18, 2004, Brownsville Events Center, 1 Events Center Boulevard, Brownsville, TX 78526; telephone: 956-554-0700;
2. Tuesday, October 19, 2004, Port Aransas Community Center, 408 North Allister, Port Aransas, TX 78373; telephone: 361-749-4111;
3. Tuesday, October 19, 2004, DoubleTree Grand Key Resort, 3990 S. Roosevelt Boulevard, Key West, FL 33040; telephone: 888-310-1540 (joint public hearing with the South Atlantic Fishery Management Council);
4. Wednesday, October 20, 2004, San Luis Resort,
5222 Seawall Boulevard, Galveston Island, TX 77651; telephone: 409-744-1500;
5. Thursday, October 21, 2004, Grand Isle Community Center, 3811 Highway 1, Grand Isle, LA 70358; telephone: 985-787-3196;
6. Monday, October 25, 2004, National Marine Fisheries Service, 3500 Delwood Beach Road, Panama City, FL 32408; telephone: 850-234-6541;
7. Tuesday, October 26, 2004, Riverview Plaza Hotel, 64 South Water Street, Mobile, AL 36602; telephone: 251-415-3068;
8. Wednesday, October 27, 2004, Palace Casino Resort, 158 Howard Avenue, Biloxi, MS 39530; telephone: 800-725-2239; and
9. Thursday, October 28, 2004, Madeira Beach City Hall, 300 Municipal Drive, Madeira Beach, FL 33708; telephone: 727-391-9951.
These hearings will be open to the public and physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Gulf of Mexico Fishery Management Council (Council) will separately convene its Mackerel and Reef Fish Advisory Panels (AP). This document replaces the notice published on September 29, 2004, due to rescheduling changes from the hurricane.
The Mackerel AP meeting will be convened by conference call at 10 a.m. est on Monday, October 25, 2004. The Reef Fish AP meeting will be convened by conference call at 10 a.m. est on Thursday, October 28, 2004.
See
Richard L. Leard, Deputy Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 228-2815.
This notice originally published at 69 FR 58152 on September 29, 2004, and is republished due to scheduling changes from the hurricane.
Persons wishing to listen to the calls may do so at the following locations:
1. NMFS Panama City Laboratory, 3500 Delwood Beach Road, Panama City, FL, Contact: Gary Fitzhugh at 850-234-6541, extension 214.
2. NMFS Southeast Regional Office, 9721 North Executive Center Drive, St. Petersburg, FL, Contact: Peter Hood at 727-570-5728.
3. NMFS Pascagoula Laboratory, 3209 Frederic Street, Pascagoula, MS, Contact: Cheryl Hinkel 228-762-4591.
4. NMFS Galveston Laboratory (on 28th only), 4700 Avenue U, Galveston, TX, Contact: Rhonda O'Toole at 409-766-3500.
The Gulf of Mexico Fishery Management Council (Council) will separately convene its Mackerel and Reef Fish Advisory Panels (AP) to review public hearing drafts of
Although other non-emergency issues not on the agendas may be discussed by the APs, 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 APs 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.
Requests for sign language interpretation or other auxiliary aids should be directed to Dawn Aring at the Council office (see
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*National Civilian Community Corps (NCCC) Team Leader Application 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 ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Mr. John Hourihan at (202) 606-5000, ext. 189. Individuals who use a telecommunications device for the deaf (TTY-TDD) may call (202) 565-2799 between 8:30 a.m. and 5 p.m. eastern time, Monday through Friday.
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 Officer 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 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 agency'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 through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
A 60-day public comment Notice was published in the
Department of the Army, DoD.
Notice.
Notice is given of the names of members of a Performance Review Board for the Department of the Army.
September 30, 2004.
Marilyn Ervin, U.S. Army Senior Executive Service Office, Assistant Secretary of the Army, Manpower & Reserve Affairs, 111 Army, Washington, DC 20310-0111.
Section 4314(c) (1) through (5) of Title 5, U.S.C., requires each agency to establish, in accordance with regulations, one or more Senior Executive Service performance review boards. The boards shall review and evaluate the initial appraisal of senior executives' performance by supervisors and make recommendations to the appointing authority or rating official relative to the performance of these executives.
The members of the Performance Review Board for the Headquarters (HQ), U.S. Army Materiel Command (AMC) are:
The members of the Performance Review Board for the Army Acquisition Executive (AAE) Corps are:
The members of the Performance Review Board for the Consolidated Commands are:
The members of the Performance Review Board for the Office of the Secretary of the Army are:
The members of the Performance Review Board for the U.S. Army, Chief of Staff of the Army, are:
The following notice of meeting is published pursuant to section 3(a) of the Government in the Sunshine Act (Pub. L. 94-409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
October 6, 2004. (Within a relatively short time after the Commission's open meeting on October 6.)
Room 3M 4A/B, 888 First Street, NE., Washington, DC 20426.
Closed.
Non-Public Investigations and Inquiries, Enforcement Related Matters, and Security of Regulated Facilities.
Magalie R. Salas, Secretary. Telephone (202) 502-8400.
Chairman Wood and Commissioners Brownell, Kelliher, and Kelly voted that agency business requires the holding of a closed meeting on less than the seven days' notice required by the Government in the Sunshine Act. The certification of the General Counsel explaining the action closing the meeting is available for public inspection in the Commission's Public Reference Room at 888 First Street, NE., Washington, DC 20426.
The Chairman and the Commissioners, their assistants, the Commission's Secretary and her assistant, the General Counsel and members of her staff, and a stenographer are expected to attend the meeting. Other staff members from the Commission's program offices who will
Environmental Protection Agency (EPA).
Notice of final order on petition to object to a state operating permit.
Pursuant to Clean Air Act section 505(b)(2) and 40 CFR 70.8(d), the EPA Administrator signed an order, dated July 29, 2004, partially granting and partially denying a petition to object to a state operating permit issued by the Tennessee Department of Environment and Conservation (TDEC) to the Tennessee Valley Authority (TVA), for its Gallatin Power Plant located in Gallatin, Sumner County,Tennessee and its Johnsonville Power Plant located in New Johnsonville, Humphreys County, Tennessee. Pursuant to section 505(b)(2) of the Clean Air Act (CAA or the Act), judicial review of any denial of the petition may be sought in the United States Court of Appeals for the appropriate circuit within 60 days of this notice under section 307 of the Act. No objection shall be subject to judicial review until final action is taken to issue or deny a permit under CAA section 505(c).
Copies of the final order, the petition, and all pertinent information relating thereto are on file at the following location: EPA Region 4, Air, Pesticides and Toxics Management Division, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The final order is also available electronically at the following address:
Daphne Wilson, Air Permits Section, EPA Region 4, at (404) 562-9098 or
The Act affords EPA a 45-day period to review and, as appropriate, to object to operating permits proposed by state permitting authorities under title V of the Act, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the Act and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.
Mr. Reed Zars submitted a petition on behalf of the Sierra Club to the Administrator on April 9, 2003, requesting that EPA object to two state title V operating permits issued by TDEC to TVA. The Petitioner maintains that the TVA Gallatin and Johnsonville permits are inconsistent with the Act because:
(1) Certain permit conditions fail to ensure compliance with applicable opacity limits; (2) the permit conditions improperly shield TVA from its requirement to independently certify compliance; (3) the permit conditions allow TDEC to make changes to the Tennessee State Implementation Plan (SIP) without EPA approval; and (4) the Johnsonville permit contains a less stringent opacity limit than is required by the SIP.
On July 29, 2004, the Administrator issued an order partially granting and partially denying this petition. The order explains the detailed reasons behind EPA's conclusion that the Petitioner adequately demonstrated that the TVA Gallatin and Johnsonville permits are not in compliance with the requirements of the Act. EPA agreed that certain permit conditions fail to ensure compliance with the applicable opacity limit and that these conditions improperly shield TVA from its requirement to independently certify compliance. The petitioner's claim that the Johnsonville permit contains a less stringent opacity limit than is required in the SIP was denied because the limit established in the permit is not less stringent than required by the SIP. As a result of the EPA's objections, TDEC is required to reopen the permit in accordance with 40 CFR 70.7(g)(4) or (g)(5)(i) and (ii).
EPA Region 6 today issues a final National Pollutant Discharge Elimination System (NPDES) general permit for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico (No. GMG290000). The general permit authorizes discharges from new sources, existing sources, and new dischargers in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category (40 CFR part 435, subpart A). The reissued permit will become effective November 8, 2004. The existing permit published in the
A copy of the Region's responses to comments and the final permit may be obtained from the EPA Region 6 Internet site:
A Record of Decision which completes the Environmental Assessment process required by the National Environmental Policy Act is also available at the above Internet address.
Ms. Diane Smith, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202, Telephone: (214) 665 7191, or via e-mail to the following address:
This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your (facility, company, business, organization, etc.) is regulated by this action, you should carefully examine the applicability criteria in Part I. Section A.1. of the general permit. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Pursuant to section 402 of the Clean Water Act (CWA), 33 U.S.C. section 1342, EPA proposed and solicited comments on NPDES general permit GMG290000 at 69 FR 39478 (June 30, 2004). Notice of this proposed permit modification was also published in the New Orleans Times Picayune, Lafayette Daily Advertiser, and Houston Chronicle on July 2, 2004. The comment period closed on July 30, 2004.
Region 6 received comments from the Offshore Operators Committee, Petroleum Equipment Suppliers Association, Cognis Oilfield Chemicals, Minerals Management Service, Murphy Exploration and Development Company, and W&T Offshore, Inc.
EPA Region 6 has considered all comments received. In response to those comments the following changes were made to the proposed permit. The effective date was changed to be 30 days after the publication date in the
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 November 8, 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 contact listed below as soon as possible.
Direct all comments regarding this Paperwork Reduction Act submission to Judith B. Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
This notice corrects a notice (FR Doc. 04-20802) published on page 55632 of the issue for Wednesday, September 15, 2004.
Under the Federal Reserve Bank of Cleveland heading, the entry for Park National Corporation, Newark, Ohio, is revised to read as follows:
Comments on this application must be received by October 12, 2004.
Board of Governors of the Federal Reserve System, October 1, 2004.
Office of Governmentwide Policy, General Services Administration (GSA).
Correction to Per Diem Bulletin 05-1, Fiscal Year (FY) 2005 continental United States (CONUS) per diem rates.
An analysis of lodging data reveals that the FY 2005 maximum per diem rates for locations within the continental United States (CONUS) should be updated to provide for the reimbursement of Federal employees' expenses covered by per diem. Per Diem Bulletin 05-1 increases/decreases the maximum lodging amounts in existing per diem localities, increases the standard CONUS lodging amount from $55 to $60 (which results in the deletion of several existing per diem localities), and adds new per diem localities due to requests by Federal agencies. The per diems prescribed in Bulletin 05-1 were posted at
This notice is effective October 1, 2004, and applies for travel performed on or after October 1, 2004.
For clarification of content, contact Adlore Chaudier, Office of Governmentwide Policy, Travel Management Policy, at (202) 501-3859. Please cite notice of correction to Per Diem Bulletin 05-1.
A notice appeared in the
GSA issues/publishes the CONUS per diem rates, formerly published in Appendix A to 41 CFR chapter 301, solely on the internet at
Office of Governmentwide Policy (MTT), GSA.
Notice of a bulletin.
Due to the scope of destruction caused by the recent natural disasters in Alabama, Florida, Louisiana, and Mississippi, agencies should consider delaying all non-essential TDY and PCS to the affected locations for a period of 90 days. This is especially important with PCS travel because the 120-day maximum for TQSE cannot be extended due to statutory restrictions. For travel which cannot be delayed, GSA adjusted several key allowances, as noted in the bulletin following this notice.
This bulletin is effective October 1, 2004.
Mr. Jim Harte, Office of Governmentwide Policy, Travel Management Policy Division (MTT), General Services Administration, Washington, DC 20405; e-mail,
1.
The provisions in this bulletin are effective from the date of the Presidential declaration of a county as an individual assistance disaster area and apply only upon that designation for the subject states. The provisions of the bulletin expire as stated in paragraph 5.
2.
3.
Additionally, the provisions of FTR 302-6.102 limiting per diem reimbursement to the standard CONUS rate for TQSE are hereby waived to allow the reimbursement of subsistence expenses at the locality per diem rate under the provisions of FTR 301-11.101 or an actual expense reimbursement allowance under FTR 301-11.300-306, at the discretion of the agency, for the areas specified in paragraph 4. The provisions of FTR 302-6.200-203 providing for fixed amount reimbursement option for TQSE remain in effect. In addition, for house hunting trips (HHT), the provisions of FTR 302-5.13 that restrict reimbursement of subsistence expenses to the lodgings-plus method are hereby waived. Thus, actual expense allowances under FTR 301-11.300-306 may be authorized, at the discretion of the agency, for those areas listed in paragraph 4. The provisions of FTR 302-5.13 providing for fixed amount reimbursement option for HHT remain in effect. In all cases, the provisions of 41 CFR 301-11.303 limiting actual expenses not to exceed 300 percent (rounded to the next higher dollar) of the applicable maximum per diem rate remains in effect.
4.
The counties of Brevard, Charlotte, Collier, DeSoto, Dixie, Duval, Flager, Glades, Hardee, Hendry, Highlands, Indian River, Lake, Lee, Levy, Manatee, Monroe, Okeechobee, Orange, Osceola, Pasco, Polk, St. Johns, Sarasota, Seminole, and Volusia.
The counties of Alachua, Baker, Bradford, Brevard, Broward, Charlotte, Citrus, Clay, Columbia, DeSoto, Dixie, Duval, Flagler, Gilchrist, Glades, Hardee, Hendry, Hernando, Highlands, Hillsborough, Indian River, Lake, Lee, Levy, Marion, Martin, Miami-Dade, Nassau, Okeechobee, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Putnam, Seminole, St. Johns, St. Lucie, Sumter, Union and Volusia Counties.
The counties of Baldwin, Butler, Clarke, Coffee, Conecuh, Covington, Crenshaw, Escambia, Geneva, Mobile, Monroe, and Washington.
The counties of Bay, Calhoun, Escambia, Franklin, Gadsden, Gulf, Holmes, Jackson, Leon, Liberty, Okaloosa, Santa Rosa, Taylor, Wakulla, Walton, and Washington.
The parishes of Jefferson, Lafourche, Orleans, Plaquemines, St. Bernard, St, Charles, St. Tammany, and Terrebonne.
The counties of George, Hancock, Harrison, Jackson, Perry, Stone, and Wayne.
5. Expiration date. This bulletin expires on December 31, 2004, unless sooner rescinded by this office.
6.
By delegation of the Administrator, General Services Administration.
Agency for Healthcare Research and Quality, HHS.
Notice of public meeting.
The Agency for Healthcare Research and Quality (AHRQ), Center for Quality Improvement and Patient Safety (CQulPS) will convene a technical expert panel (TEP) to discuss nursing home care planning and quality improvement research options for advancing this process in order to maximize quality of nursing home care. The authority for this meeting is derived from 42 U.S.C. 299b-1 and 299 which respectively authorize AHRQ to provide scientific and technical support to improve health care quality and to promote improvements in health system practices by synthesizing and disseminating available scientific information to providers and policymakers and by conducting and supporting research on methods and strategies for improving quality.
This meeting will take place on October 12, 2004 from 8:45 a.m.-5 p.m. and October 13 from 9 a.m.-3:30 p.m. The meeting is open to the public and a 30 minute public comment period is scheduled starting at 3 p.m. on the first day and 2:30 p.m. on the second day of the meeting.
Due to security measures and space constraints, it will be necessary for you to pre-register to attend the meeting. For pre-registration information please contact the meeting contractor, Karen Sofer at (301) 231-7537, ext. 260, by 11 a.m. on Monday, October 11. You will need to bring a picture ID with you. Please note that persons attempting to attend without prior registration will not be admitted to the meeting.
Please note that individuals interested in attending the meeting without prior registration will not be admitted to the meeting. The meeting will be at the AHRQ Conference Center, Watts Branch Conference Room, 540 Gaither Road, Rockville, MD 20850. Please also be advised that seating is very limited and food will be available for panelists and Agency staff. A report of the meeting will be made available to the public after the meeting.
For driving and public transportation directions, please visit
Judith Sangl (301) 427-1308.
The panel will concentrate on improving the overall framework for care planning in nursing homes. They will cover topics of patient-centered care, Resident Assessment Protocols (RAPs) format, clinical utility and ease of use (but not the specific content detail of the RAPs), informatics and decision support for care planning, and interdisciplinary planning.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-498-1210 or send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-E11, Atlanta, GA 30333 or send an e-mail to
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 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. Written comments should be received within 60 days of this notice.
Evaluation of “Steps to a HealthierUS” Program—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The Steps to a Healthier U.S. (HealthierUS) Program, known as STEPS, is an innovative program that advances the goals of helping Americans live longer, better, and healthier lives by preventing obesity, diabetes, and asthma. Forty communities across the country will or have received funding to develop and implement community action plans. These action plans will include multiple evidence-based public health strategies and interventions to increase healthy behavior change.
The goal of this evaluation is to provide annual data on STEPS program outcomes in the STEPS communities collectively and a matched national sample, using a questionnaire that is tailored to the needs of the STEPS evaluation. The survey will be administered by computer assisted telephone interviews (CATI) annually in the STEPS sites and in a nationally representative (non-STEPS sites) sample of adults 18 years and older that is matched to key characteristics of the STEPS sites collectively (
The survey will help answer key questions that cannot be adequately addressed by existing data infrastructures or by each sites' local evaluation alone. In the absence of a comparison sample, it is not possible to know if progress in STEPS communities is simply a reflection of national secular trends or an impact of the interventions. By implementing a data collection system that is uniform across all STEPS sites and a national comparison sample, directly comparable data to answer specific research questions will be collected. Results from this data collection will help provide data necessary to develop innovative solutions that can be applied by states, communities, and CDC to improve the health behaviors of Americans. There are no costs to respondents except their time to respond.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-498-1210 or send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-E11, Atlanta, GA 30333 or send an e-mail to
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 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. Written comments should be received within 60 days of this notice.
Evaluating the Impact of Lymphedema and a Lymphedema Management Intervention for Women with Lymphatic Filariasis: Understanding Issues Related to Quality of Life (OMB No. 0920-0588)—Extension—National Center for Infectious Diseases (NCID), Centers for Disease Control and Prevention (CDC).
Lymphatic filariasis, a mosquito-transmitted parasitic disease affecting over 120 million people, is the second leading cause of permanent disability worldwide. Globally, lymphatic filariasis causes debilitating genital disease in an estimated 25 million men and lymphedema or elephantiasis of the leg in 15 million people, mostly women in poverty stricken countries. The World Health Organization (WHO) recently identified community management of chronic lymphedema as one of the top twenty lymphatic filariasis research priorities. Recent advances in the management of chronic lymphedema include a prescribed hygiene and wound care intervention. This intervention has shown promising results in: (1) Preventing bacterial infections thus reducing acute attacks; (2) anecdotally improving overall quality of life; (3) alleviating pain; (4) and preventing further suffering.
The data gathered from this study will assist CDC in the development, monitoring and evaluation of morbidity control programs, and the provision of technical assistance to collaborating countries in the
In addition, the data findings will also be used on a global level (in collaboration with WHO, PAHO, the Liverpool School of Medicine, Emory University, and others) to develop process and outcome indicators for evaluating and monitoring treatment programs at the clinic-level, community-level and home-level. As new programs are initiated, critical evaluation measures are needed to measure the effectiveness of these programs to avoid spending money on ineffective strategies. Operationally this data will allow us to develop a public health strategy for women with disease and their communities that include the regimen of meticulous local hygiene to the affected areas. It will also allow us to develop critical evaluation indicators to ensure appropriate program monitoring so that information will be immediately available for assessment by both the affected countries and the donor agencies supporting program activities. Data will be widely disseminated in reports, presentations, and professional peer-reviewed publications to persons who work in prevention of this disease. There is no cost to respondents.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-498-1210 or send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-E11, Atlanta, GA 30333 or send an e-mail to
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 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. Written comments should be received within 60 days of this notice.
Environmental Health Specialists Network (EHS-Net)—New—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
CDC is requesting OMB approval for a data collection system that will assist public health officials to better identify and assess environmental factors contributing to foodborne outbreaks and the prevention efforts needed to reduce or ameliorate these events. The Environmental Health Specialists Network (EHS-Net) Environmental Evaluation System data collection is a standardized survey instrument developed by CDC in collaboration with the U.S. Food and Drug Administration (FDA) and the EHS-Net participating states—California, Colorado, Connecticut, Georgia, Minnesota, New York, Oregon, and Tennessee. The instrument is for use in non-regulatory environmental evaluations. It has been pilot tested in the EHS-Net states.
The eight states in the pilot testing phase used the EHS-Net survey instrument to collect environmental information from two groups of restaurants: those associated with foodborne outbreaks and those that were not. The survey instrument collects information about the restaurant's food safety policies and procedures and also includes direct observations of food preparation and handling practices, and food worker behaviors.
CDC will evaluate the data collected in these eight pilot states to further refine and improve the EHS-Net data collection instrument and methodology. Once this evaluation is completed, the EHS-Net data collection instrument and methodology will be made available to all public health officials in the United States who wish to use the system to identify and assess environmental factors in food establishments that contribute to foodborne illness; and to evaluate the effectiveness of existing prevention measures including food-handling practices, policies, and other control measures. There are no costs to respondents.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 498-1210 or send an e-mail to
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 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
An Evaluation Survey on the Use and Effectiveness of Internet SAMMEC, (0920-0624)—Extension—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Since 1987, CDC has used the Smoking-Attributable Mortality, Morbidity, and Economic Costs (SAMMEC) software to estimate the disease impact of smoking for the nation, states, and large populations. The Internet version of the SAMMEC software was released in 2002, and it contains two distinct computational programs, Adult SAMMEC and Maternal and Child Health SAMMEC, which can be used to estimate the adverse health outcomes and disease impact of smoking on adults and infants.
Since the release of Internet SAMMEC, more than 1230 tobacco control professionals in the State health departments and other tobacco control institutions in the country have used SAMMEC to generate the data they need for their projects. Some of them have provided comments and sent requests for assistance. Of those users, 1000 will be recruited to participate in this survey.
The purpose of this survey is to evaluate the use and effectiveness of the SAMMEC software and identify ways to improve the system so that it will better meet the needs of the users in tobacco control and prevention. There are no costs to the respondents except for their time in completing the questionnaire.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) and the Health Resources and Services Administration (HRSA) announce the following committee meeting.
Paulette Ford-Knights, Public Health Analyst, National Center for HIV, STD, and TB Prevention, 1600 Clifton Road, NE., Mailstop E-07, Atlanta, Georgia 30333. Telephone 404/639-8008, fax 404/639-3125, e-mail
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice; correction.
This document corrects technical errors that appeared in the
Effective for discharges occurring on or after October 1, 2004, and on or before September 30, 2005.
August Nemec, (410) 786-0612; or Jeannette Kranacs, (410) 786-9385.
In CMS-1360-N, FR Doc. 04-17444 of July 30, 2004 (69 FR 45721), there were three technical errors that are identified and corrected in the Correction of Errors section below. The provisions in this correction notice are effective as if they had been included in the document published July 30, 2004. Accordingly, the corrections are effective for discharges occurring on or after October 1, 2004, and on or before September 30, 2005.
We recently determined that several technical errors occurred in the publication of the wage index values for a number of specific Metropolitan Statistical Areas (MSAs). A description of those technical errors is included in the “Correction of Errors” section below. We note that correcting these technical errors is a purely administrative function that does not result in any change of policy or payment methodology.
In CMS-1360-N, FR Doc. 04-17444 of July 30, 2004 (69 FR 45721), make the following corrections:
A. On page 45734, remove Stanly, NC from Urban Area 1520 Charlotte-Gastonia-Rock Hill, NC-SC, because it has a rural designation instead of an urban designation. We note an error in the labeling of the wage index tables within the Inpatient Rehabilitation Facility Prospective Payment System (IRF PPS). That labeling error is the listing of Stanly County, NC as one of the urban areas under MSA 1520 when, in fact, we consider Stanly County, NC to be a rural area in North Carolina. Stanly County wage data have always been correctly treated as rural in the actual creation of the IRF wage index values, and it has only been the listing of Stanly County under MSA 1520 that was in error. Consequently, we are correcting our labeling error in the IRF PPS notice (CMS-1360-N), and have removed Stanly County from the list of areas that fall under the MSA 1520 wage index. Since this is strictly a labeling correction that does not affect the actual computation of the wage index values, IRFs in Stanly County, NC will continue to fall under, and use, the wage index for rural North Carolina.
B. On page 45746, remove the wage index of 0.0000 for Urban Area 4150 and in its place, add a wage index of 0.8677. This change is made due the inadvertent insertion of 0.0000 for MSA 4150 when it should have been 0.8677.
C. On page 45757, remove the wage index of 0.0000 for Urban Area 7000 and in its place, add a wage index of 0.9757. This change is made due to the inadvertent insertion of 0.0000 for MSA 7000 when it should have been 0.9757.
We ordinarily publish a notice of proposed rulemaking in the
We find it unnecessary to undertake notice-and-comment rulemaking because this correction notice merely provides technical corrections to the July 30, 2004 notice. This correction notice corrects inadvertent drafting errors (that is, a labeling error with respect to Stanley County and the insertion of incorrect wage indexes for MSA 4150 and MSA 7000). We are not making substantive changes in policy, but rather, are simply implementing correctly the payment methodology that we long ago proposed, received comment on, and subsequently finalized. Thus, because the public has already had the opportunity to comment on the payment methodology used to calculate the wage indexes, additional comment would be unnecessary.
In addition, publication of a substantive rule shall be made not less than 30 days before its effective date. We can waive this procedure, however, if we find good cause that a delayed effective date is impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(d)(3). We believe a delayed effective date is unnecessary because this correction notice merely corrects inadvertent technical mistakes (that is, a labeling error with respect to Stanley County and the insertion of incorrect numbers in the wage indexes for MSA 4150 and MSA 7000). Further, we believe imposing a 30-day delay in the effective date would be contrary to the public interest with respect to IRF providers in MSA 4150 and MSA 7000. As a matter of good public policy, the rates used in the IRF PPS should not be based on wage indexes that contain inadvertent errors that, if not corrected, would have very real impacts on the payments received by providers in MSA 4150 and MSA 7000. We believe that it is imperative that these providers receive appropriate IRF PPS payments and that failure to do so would be contrary to the public interest. Furthermore, the changes noted above do not make any substantive changes to the IRF PPS payment methodology or underlying payment policies. Therefore, we find good cause to waive the 30-day delayed effective date.
Centers for Medicare & Medicaid Services (CMS), HHS.
Correction notice.
This document corrects technical errors that appeared in the July 30, 2004
This correction is effective October 1, 2004.
Jeanette Kranacs, (410) 786-9385, Bill Ullman, (410) 786-5667, or Sheila Lambowitz, (410) 786-7605.
In FR Doc. 04-17443 of July 30, 2004 (69 FR 45775), there were a number of technical errors that are identified in this notice. It was recently determined that technical errors occurred in the hospital wage index calculation process
We are correcting Table 10 (which serves to illustrate the payment rate computations for a fictitious “XYZ” SNF located in State College, PA), in order to reflect the application of the corrected wage index. In section II of this notice we are correcting the figure for the PPS total payment in the “XYZ” example and restoring a footnote that was inadvertently omitted from the published table. This footnote corresponds to the triple asterisk displayed in the table's “Percent Adjustment” column for Resource Utilization Group (RUG) SSC, and refers to the application of the 20 percent add-on under section 101(a) of the Medicare, Medicaid and SCHIP Balanced Budget Refinement Act of 1999.
We are also correcting Table 12, which displays the projected impact of the FY 2005 SNF PPS payment update, including the variation in impact by region and by certain other facility characteristics. We note that the effect on the corrected table is solely distributional in nature and, accordingly, there is no change in the estimated aggregate expenditures for FY 2005 as set forth in the July 30, 2004, update notice. A further discussion of the projected impact of the FY 2005 SNF PPS payment update can be found in the July 30, 2004, update notice (69 FR 45820).
In addition, we have identified a labeling error in the wage index tables used in the SNF PPS. That labeling error is the listing of Stanly County, NC as one of the areas under Metropolitan Statistical Area (MSA) 1520 when, in fact, we consider Stanly County, NC to be a rural area in North Carolina. Stanly County wage data have always been correctly treated as rural in the actual creation of the SNF wage index values, and it has only been the listing of Stanly County under MSA 1520 that was in error. Consequently, we have corrected the wage index table in the update notice to remove Stanly County from the list of areas that fall under the MSA 1520 wage index. Since this is strictly a labeling correction that does not affect the actual computation of the wage index values, SNFs in Stanly County, NC will fall under, and use, the wage index for rural North Carolina effective October 1, 2004.
We also wish to clarify that the adjustment amount ($463.96) displayed for RUG CC2 in the “Percent Adjustment” column of the corrected Table 10, as indicated by the double asterisk and accompanying footnote, assumes that the days shown in the table for RUG CC2 are for treatment of a patient with acquired immune deficiency syndrome (AIDS). Therefore, this adjustment amount reflected the application of section 511 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA). As explained in the July 30, 2004, update notice (69 FR 45777), section 511 of the MMA provides for a temporary 128 percent increase in payment for any SNF resident with AIDS. We further note that this special 128 percent add-on is applicable regardless of the particular RUG to which an AIDS patient is assigned, and is made in lieu of any other add-on (either 20 percent or 6.7 percent) that might otherwise apply to that RUG.
We have corrected the errors in the wage tables and other tables as noted above. These corrected tables are posted and available on the CMS Web site at:
In FR Doc. 04-17443 (69 FR 45775), make the following corrections:
1. On page 45817,
a. Third column, line 12, the figure “$25,161” is corrected to read “$25,117”.
b. At the end of the table and after the last sentence, add the following sentence “*-*-*Reflects a 20 percent adjustment from section 101(a) of the BBRA.”.
We ordinarily publish a notice of proposed rulemaking in the
We find it unnecessary to undertake notice-and-comment rulemaking because this notice merely provides technical corrections to the regulations. We are not changing our payment methodology, but rather, are simply implementing correctly the payment methodology that we previously proposed, received comment on, and subsequently finalized. Thus, because the public has already had the opportunity to comment on the payment methodology being used to calculate wage indexes, additional comment would be unnecessary.
Further, we believe a delayed effective date is unnecessary because this correction notice merely corrects inadvertent technical mistakes (that is, a labeling error with respect to Stanley County and the insertion of incorrect numbers in the wage indexes for certain MSAs). Further, we believe imposing a 30-day delay in the effective date would be contrary to the public interest with respect to SNF providers in the affected MSAs. As a matter of good public policy, the rates used in the SNF PPS should not be based on wage indexes that contain inadvertent errors that, if not corrected, would have very real impacts on the payments received by providers in the affected MSAs. We believe that it is imperative that these providers receive appropriate SNF PPS payments and that failure to do so would be contrary to the public interest. Furthermore, the changes noted above do not make any substantive changes to the SNF PPS payment methodology or underlying payment policies. Therefore, we find good cause to waive notice-and-comment procedures, as well as the 30-day delay in effective date.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is providing notice of a memorandum of understanding (MOU) between the State of Illinois, Emergency Management Agency, Bureau of Radiation Safety and the Food and Drug Administration, Center for Devices and Radiological Health. The purpose of this MOU is to authorize the State of Illinois, through the Illinois Emergency Management Agency, to continue to conduct a State as certifiers program in Illinois under the Mammography Quality Standards Act as amended by the Mammography Quality Standards Reauthorization Act of 1998.
The agreement became effective August 18, 2004.
Joanne Choy, Division of Mammography Quality and Radiation Programs (HFZ-240), 1350 Piccard Dr., Rockville, MD 20850, 301-827-2903, or e-mail:
In accordance with 21 CFR 20.108(c), which states that all written agreements and MOUs between FDA and others shall be published in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the members of the FDA Performance Review Board (PRB). This action is intended to ensure that members of the PRBs are appointed in a manner that provides consistency, stability, and objectivity in performance appraisals, and that notice of the appointment of members of the board be published in the
Arlene S. Karr, Rockville Human Resources Center, Department of Health and Human Services (DHHS), 5600 Fishers Lane, Rockville, MD 20857, 301-827-4183.
The following persons will serve on FDA's PRB, which oversees the evaluation of performance appraisals of FDA's Senior Executive Service members in accordance with 5 U.S.C. 4314(c)(4): Jeffrey M. Weber, Chairperson, Richard Diamond, Margaret O'K Glavin,William K. Hubbard, Linda Kahan, Michael Landa, John Marzilli, Melinda K. Plaisier, Linda Tollefson, and Helen Winkle.
Bureau of Citizenship and Immigration Services, DHS.
Notice.
The Temporary Protected Status (TPS) designation for Burundi will expire on November 2, 2004. This notice extends the Secretary of Homeland Security's designation of Burundi for 12 months, until November 2, 2005, and sets forth procedures necessary for nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) with TPS to re-register and to apply for an extension of their employment authorization documentation for the additional 12-month period. Re-registration is limited to persons who registered under the initial designation
The extension of Burundi's TPS designation is effective November 2, 2004, and will remain in effect until November 2, 2005. The 60-day re-registration period begins October 7, 2004 and will remain in effect until December 6, 2004.
Colleen Cook, Residence and Status Services, Office of Programs and Regulations Development, Bureau of Citizenship and Immigration Services, Department of Homeland Security, 425 I Street, NW., Ullico Building, 3rd Floor, Washington, DC 20529, telephone (202) 514-4754.
On March 1, 2003, the functions of the Immigration and Naturalization Service (Service) transferred from the Department of Justice (DOJ) to the Department of Homeland Security (DHS) pursuant to the Homeland Security Act of 2002, Public Law 107-296. The responsibilities for administering TPS held by the Service were transferred to the Bureau of Citizenship and Immigration Services (BCIS).
Under section 244 of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a, the Secretary of DHS, after consultation with appropriate agencies of the Government, is authorized to designate a foreign state or (part thereof) for TPS. 8 U.S.C. 1254a(b)(1). The Secretary of DHS may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state). 8 U.S.C. 1254a(a)(1).
Section 244(b)(3)(A) of the Act requires the Secretary of DHS to review, at least 60 days before the end of the TPS designation or any extension thereof, the conditions in a foreign state designated for TPS to determine whether the conditions for a TPS designation continue to be met and, if so, the length of an extension of TPS. 8 U.S.C. 1254a(b)(3)(A). If the Secretary of DHS determines that the foreign state no longer meets the conditions for TPS designation, he shall terminate the designation, as provided in section 244(b)(3)(B) of the Act. 8 U.S.C. 1254a(b)(3)(B). Finally, if the Secretary of DHS does not determine that a foreign state (or part thereof) no longer meets the conditions for designation at least 60 days before the designation or extension is due to expire, section 244(b)(3)(C) of the Act provides for an automatic extension of TPS for an additional period of 6 months (or, in the discretion of the Secretary of DHS, a period of 12 or 18 months). 8 U.S.C. 1254a(b)(3)(C).
On November 4, 1997, the Attorney General published a notice in the
The Secretary of DHS published a 12-month extension of TPS for Burundi in the
Since the date of the most recent extension, DHS and the Department of State (DOS) have continued to review conditions in Burundi. Although some progress has been made in the peace process, the Secretary of DHS has determined that a 12-month extension of TPS is warranted because both the armed conflict and extraordinary and temporary conditions that prompted designation persist. Further, the Secretary finds that it is not contrary to the national interest of the United States to permit nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who otherwise qualify for TPS to remain temporarily in the United States. 8 U.S.C. 1254a(b)(1)(C).
DOS observes that progress in building a long-term peace has been slower than expected. (DOS Recommendation (June 30, 2004)). One rebel group, the Party for the Liberation of the Hutu People-Forces for National Liberation (PALIPEHUTU-FNL), remains outside of the peace process. (BCIS Resource Information Center Report (June 29, 2004) (hereinafter RIC Report (June 29, 2004)). Fighting between the armed forces of Burundi and the PALIPEHUTU-FNL, as well as between the PALIPEHUTU-FNL and the largest former rebel group, the National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD), continues in Bujumbura Rural, the region surrounding the capital.
The transitional period set forth under the Arusha Peace and Reconciliation Agreement signed August 28, 2000, is coming to an end in late 2004. The demobilization of armed groups, not including the 3,000-strong PALIPEHUTU-FNL, is in its early stages at 11 cantonment sites throughout the country.
The armed conflict has displaced 140,000-280,000 persons within Burundi and an estimated 800,000 outside Burundi. (DOS Recommendation (June 30,2004); RIC Report (June 29, 2004)). Another 100,000 Burundians are temporarily displaced each month. (RIC Report (June 29, 2004)).
In spite of the reduction of armed conflict, there continue to be reports of human rights violations by all parties to the conflict.
Based upon this review, the Secretary of DHS, after consultation with
Yes. If you already have received TPS benefits through the Burundi TPS designation, your benefits will expire on November 2, 2004. Accordingly, individual TPS beneficiaries must comply with the re-registration requirements described below in order to maintain TPS benefits through November 2, 2005. TPS benefits include temporary protection against removal from the United States, as well as employment authorization, during the TPS designation period and any extension thereof. 8 U.S.C. 1254a(a)(1).
All persons previously granted TPS under the Burundi designation who wish to maintain such status must apply for an extension by filing the following: (1) Form I-821, Application for Temporary Protected Status, without the filing fee; (2) Form I-765, Application for Employment Authorization; (3) two identification photographs (full face frontal 2 inches x 2 inches); and (4) a biometrics fee of seventy dollars ($70) for each applicant age 14 and older. (See the chart below to determine whether you must submit the one hundred and seventy-five dollar ($175) filing fee with Form I-765.) All applicants for TPS benefits, including those applying for re-registration need to be re-fingerprinted and thus need to pay the seventy dollar ($70) biometric services fee.
An application submitted without the required fee and/or photos will be returned to the applicant. Submit the completed forms and applicable fee, if any, to the BCIS District Office having jurisdiction over your place of residence during the 60-day re-registration period that begins October 7, 2004 and ends December 6, 2004. An interim employment authorization document will not be issued unless the Form I-765, as part of the TPS registration package, has been pending with BCIS more than 90 days after all requested initial evidence has been received, including collection of the applicant's fingerprints at an Application Support Center (ASC).
An application for TPS does not affect an application for asylum or any other immigration benefit. Denial of an application for asylum or any other immigration benefit does not affect an applicant's TPS eligibility, although the grounds for denying one form of relief may also be grounds for denying TPS. For example, a person who has been convicted of a particularly serious crime is not eligible for asylum or TPS. 8 U.S.C. 1158(b)(2)(A)(ii); 8 U.S.C. 1254a(c)(2)(B)(ii).
Yes. Individuals who do not meet the physical presence and continuous residence requirements as explained earlier in this notice are ineligible for TPS. In addition, there are certain criminal and terrorism related inadmissibility grounds that apply to TPS applicants and would render an alien ineligible for TPS. 8 U.S.C. 1254a (c)(2)(iii). Further, aliens who have been convicted of a felony, or two or more misdemeanors, committed in the United States and aliens who are described in the bars to asylum in Section 208 (b)(2)(A) of the Act, 8 U.S.C. 1158(b)(2)(A), are ineligible for TPS. 8 U.S.C. 1254a (c)(2)(B).
Yes. Registration for TPS does not prevent you from applying for another non-immigrant status or from filing for adjustment of status based on an immigrant petition. 8 U.S.C. 1254a(a)(5). TPS alone, however, does not lead to adjustment of status.
No. This is a notice of an extension of TPS, not a notice of re-designation of TPS for Burundi. An extension of TPS does not change the required dates of continuous residence and continuous physical presence in the United States. This extension does not expand TPS availability to those beyond the current TPS eligibility requirements of Burundi. To be eligible for benefits under this extension, nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) must have been continuously physically present and continuously resided in the United States since November 9, 1999,
Some persons may be eligible for late initial registration under 8 U.S.C. 1254a(c)(1)(A), 8 U.S.C. 1254a(c)(2), and 8 CFR 244.2. To apply for late initial registration an applicant must:
(1) Be a national of Burundi (or alien who has no nationality and who last habitually resided in Burundi);
(2) Have been continuously physically present in the United States since
November 9, 1999;
(3) Have continuously resided in the United States since November 9, 1999; and
(4) Be both admissible as an immigrant, except as provided under section 244(c)(2)(A) of the Act, and not ineligible under section 244(c)(2)(B) of the Act.
Additionally, the applicant must be able to demonstrate that during the registration period for the initial designation (from November 4, 1997 to November 3, 1998), or during the registration period for the re-designation (from November 9, 1999 to November 2, 2000), he or she:
(1) Was a nonimmigrant or had been granted voluntary departure status or any relief from removal;
(2) Had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal or change of status pending or subject to further review or appeal;
(3) Was a parolee or had a pending request for reparole; or
(4) Was the spouse or child of an alien currently eligible to be a TPS registrant.
An applicant for late initial registration must file an application for late registration no later than 60 days after the expiration or termination of the conditions described above. 8 CFR 244.2(g).
At least 60 days before this extension of TPS expires on November 2, 2005, the Secretary of DHS will review conditions in Burundi and determine whether the conditions for TPS designation continue to be met at that time, or whether the TPS designation should be terminated. 8 U.S.C. 1254a(b)(3)(A). Notice of that determination, including the basis for the determination, will be published in the
By the authority vested in DHS under sections 244(b)(1)(A), (b)(1)(C), (b)(3)(A), and (b)(3)(C) of the Act, DHS has determined, after consultation with the appropriate government agencies, that the conditions that prompted designation of Burundi for TPS continue to be met. Accordingly, DHS orders as follows:
(1) The designation of Burundi under sections 244(b)(1)(A) and (b)(1)(C) of the Act is extended for an additional 12-month period from November 2, 2004, to November 2, 2005. 8 U.S.C. 1254a(b)(3)(C).
(2) There are approximately 19 nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who have been granted TPS and who are eligible for re-registration.
(3) To maintain TPS, a national of Burundi (or an alien having no nationality who last habitually resided in Burundi) who was granted TPS during the initial designation period or re-designation period must re-register for TPS during the 60-day re-registration period from October 7, 2004 until December 6, 2004.
(4) To re-register, the applicant must file the following: (1) Form I-821, Application for Temporary Protected Status without fee; (2) Form I-765, Application for Employment Authorization with fee if work authorization is requested; (3) two identification photographs (full face frontal 2 inches by 2 inches); and (4) a biometrics fee of seventy dollars ($70) for each applicant age 14 and older. Applications submitted without the required fee and/or photos will be returned to the applicant. If the applicant requests employment authorization, he or she must submit one hundred and seventy-five dollars ($175) or a properly documented fee waiver request, pursuant to 8 CFR 244.20, with the Form I-765. An applicant who does not request employment authorization must nonetheless file Form I-765 along with Form I-821, but is not required to submit the fee for filing Form I-765. Failure to re-register without good cause will result in the withdrawal of TPS. 8 U.S.C. 1254a(c)(3)(C). Some persons who had not previously applied for TPS may be eligible for late initial registration under 8 CFR 244.2.
(5) At least 60 days before this extension terminates on November 2, 2005, the Secretary will review the designation of TPS for Burundi and determine whether the conditions for designation continue to be met. 8 U.S.C. 1254a(b)(3)(A). Notice of that determination, including the basis for the determination, will be published in the
(6) Information concerning the extension of designation of Burundi for TPS will be available at local BCIS offices upon publication of this notice and on the BCIS Web site at
Bureau of Citizenship and Immigration Services, DHS.
Notice.
The Temporary Protected Status (TPS) designation for Sudan will expire on November 2, 2004. This notice extends the Secretary of Homeland Security's designation of Sudan for 12 months until November 2, 2005, and sets forth procedures necessary for nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) with TPS to re-register and to apply for an extension of their employment authorization documentation for the additional 12-month period. Re-registration is limited to persons who registered under the initial designation (which was announced on November 4, 1997) and also timely re-registered under each subsequent extension of the designation; or who registered under the re-designation (which was announced on November 9, 1999) and also timely re-registered under each extension of the re-designation. This notice also re-designates Sudan for TPS. To register for the first time under the re-designation, eligible nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) must have been continuously physically present and continuously resided in the United States since October 7, 2004.
The extension of Sudan's TPS designation is effective November 2, 2004, and will remain in effect until November 2, 2005. The 60-day re-registration period begins October 7, 2004 and will remain in effect until December 6, 2004. The re-designation of Sudan for TPS also is effective November 2, 2004, and will
Colleen Cook, Residence and Status Services, Office of Programs and Regulations Development, Bureau of Citizenship and Immigration Services, Department of Homeland Security, 425 I Street, NW., Ullico Building, 3rd Floor, Washington, DC 20529, telephone (202) 514-4754.
On March 1, 2003, the functions of the Immigration and Naturalization Service (Service) transferred from the Department of Justice (DOJ) to the Department of Homeland Security (DHS) pursuant to the Homeland Security Act of 2002, Pub. L. 107-296. The responsibilities for administering TPS held by the Service were transferred to the Bureau of Citizenship and Immigration Services (BCIS).
Under section 244 of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a, the Secretary of DHS, after consultation with appropriate agencies of the Government, is authorized to designate a foreign state or (part thereof) for TPS. 8 U.S.C. 1254a(b)(1). The Secretary of DHS may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state).
Section 244(b)(3)(A) of the Act requires the Secretary of DHS to review, at least 60 days before the end of the TPS designation or any extension thereof, the conditions in a foreign state designated for TPS to determine whether the conditions for a TPS designation continue to be met and, if so, the length of an extension of TPS. 8 U.S.C. 1254a(b)(3)(A). If the Secretary of DHS determines that the foreign state no longer meets the conditions for TPS designation, he shall terminate the designation, as provided in section 244(b)(3)(B) of the Act. 8 U.S.C. 1254a(b)(3)(B). If the Secretary of DHS does not determine that a foreign state (or part thereof) no longer meets the conditions for designation at least 60 days before the designation, or extension of such designation, is due to expire, section 244(b)(3)(C) of the Act provides for an automatic extension of TPS for an additional period of 6 months (or, in the discretion of the Secretary of DHS, a period of 12 or 18 months). 8 U.S.C. 1254a(b)(3)(C).
On November 4, 1997, the Attorney General published a notice in the
The Secretary of Homeland Security published a 12-month extension of TPS for Sudan by publishing a notice in the
Since the date of the most recent extension, DHS and the Department of State (DOS) have continued to review conditions in Sudan. Although some progress has been made in the peace negotiations for the North-South conflict, the Secretary of DHS has determined that a 12-month extension is warranted because the armed conflict in Sudan continues. Likewise, the extraordinary and temporary conditions resulting from Sudan's North-South civil war persist. 8 U.S.C. 1254a(b)(1)(A), (C). Further, the Secretary finds that it is not contrary to the national interest of the United States to permit nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) who otherwise qualify for TPS to remain temporarily in the United States. 8 U.S.C. 1254a(b)(1)(C). The Secretary of DHS has also determined that Sudan be re-designated for TPS based on the intensification of the armed conflict in the Darfur region of Sudan.
Both DOS and the BCIS Resource Information Center note that a framework peace agreement between the Government of Sudan and the Sudan People's Liberation Army (SPLA) was signed in June 2004. (DOS Recommendation (June 24, 2004) and BCIS Resource Information Center Report (June 30, 2004), (hereinafter RIC Report (June 30, 2004)). In spite of that progress, the North-South civil war continues without a comprehensive peace agreement to end the civil war. (DOS Recommendation (June 24, 2004)). Fighting continues between the SPLA and southern militias. (RIC Report (June 30, 2004). Renewed fighting caused the displacement of 70,000 people in south Sudan's Shilluk Kingdom.
In addition to the North-South conflict, the conflict in the western region of Darfur has intensified. Up to 30,000 civilians have been killed. (RIC Report (June 30, 2004)). Up to one million people have been displaced from their homes in Darfur and over 100,000 have fled to neighboring Chad.
Based upon this review, the Secretary of DHS, after consultation with appropriate government agencies, finds that the conditions that prompted designation of Sudan for TPS continue to be met. 8 U.S.C. 1254a(b)(3)(A). The armed conflict is ongoing and there are extraordinary and temporary conditions in Sudan such that it is not safe to return nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) if these aliens meet the statutory and regulatory requirements for TPS. 8 U.S.C. 1254a(b)(1)(A), (C). The Secretary of DHS also finds that permitting nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) who are eligible for TPS to remain temporarily in the United States is not contrary to the national interest of the United States. 8 U.S.C. 1254a(b)(1)(C). On the basis of these findings, the Secretary of DHS concludes that the TPS designation for Sudan should be extended for an additional 12-month period and that Sudan should be re-designated for TPS. 8 U.S.C. 1254a(b)(3)(C), 1254a(b)(1)(A).
Yes. If you already have received TPS benefits through the Sudan TPS designation, your benefits will expire on November 2, 2004. Accordingly, individual TPS beneficiaries must comply with the re-registration requirements described below in order to maintain their TPS benefits through November 2, 2005. TPS benefits include
All persons previously granted TPS under the Sudan designation who wish to maintain such status must apply for an extension by filing the following: (1) Form I-821, Application for Temporary Protected Status, without the filing fee; (2) Form I-765, Application for Employment Authorization; (3) two identification photographs (full face frontal 2 inches x 2 inches); and (4) a biometrics fee of seventy dollars ($70) for each applicant age 14 or older. (See the chart below to determine whether you must submit the one hundred and seventy-five dollar ($175) filing fee with Form I-765.) All applicants for TPS benefits, including those applying for re-registration need to be re-fingerprinted and thus need to pay the seventy dollar ($70) biometric services fee.
An application submitted without the required fee and/or photos will be returned to the applicant. Submit the completed forms and applicable fee, if any, to the BCIS District Office having jurisdiction over your place of residence during the 60-day re-registration period that begins October 7, 2004 and ends December 6, 2004. An interim employment authorization document will not be issued to an applicant unless the Form I-765, as part of the TPS registration package, has been pending with BCIS more than 90 days after all requested initial evidence has been received, including collection of the applicant's fingerprints at an Application Support Center (ASC).
Does this extension allow nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) who entered the United States after November 9, 1999, to file for TPS?
Yes. This notice re-designates Sudan for TPS based on the ongoing armed conflict in the Darfur region. To register for TPS under this re-designation nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) must have been continuously physically present and continuously resided in the United States since October 7, 2004.
First-time applicants for TPS may register under the re-designation by filing the following: (1) Form I-821, Application for Temporary Protected Status, with the fifty dollar ($50) filing fee; (2) Form I-765, Application for Employment Authorization; (3) two identification photographs (full face frontal 2 inches × 2 inches); (4) supporting evidence as required to establish eligibility for TPS benefits as provided in 8 CFR 244.9; and (5) a biometrics fee of seventy dollars ($70) for each applicant over the age of 14. (See the chart below to determine whether you must submit the one hundred and seventy five dollar ($175) filing fee with Form I-765).
An application submitted without the required fee and/or photos will be returned to the applicant. Submit the completed forms and applicable fee, if any, to the BCIS District Office having jurisdiction over your place of residence during the 180-day registration period that begins October 7, 2004 and ends April 5, 2005. An interim employment authorization document will not be issued to an applicant unless the Form I-765, as part of the TPS registration package, has been pending with BCIS more than 90 days after all requested initial evidence has been received, including collection of the applicant's fingerprints at an Application Support Center (ASC).
An application for TPS does not affect an application for asylum or any other immigration benefit. Denial of an application for asylum or any other immigration benefit does not affect an applicant's TPS eligibility, although the grounds for denying one form of relief may also be grounds for denying TPS. For example, a person who has been convicted of a particularly serious crime is not eligible for asylum or TPS. 8 U.S.C. 1158(b)(2)(A)(ii), 1254a(c)(2)(B)(ii).
Yes. Individuals who do not meet the physical presence and continuous residence requirements as explained earlier in this notice are ineligible for TPS. In addition, there are certain criminal and terrorism related inadmissibility grounds that apply to TPS applicants and would render an alien ineligible for TPS. 8 U.S.C. 1254a (c)(2)(iii). Further, aliens who have been convicted of a felony, or two or more misdemeanors, committed in the United States, and aliens who are described in the bars to asylum under Section 208(b)(2)(A) of the Act (8 U.S.C. 1158(b)(2)(A)), are ineligible for TPS. 8 U.S.C. 1254a(c)(2)(B).
Yes. Registration for TPS does not prevent you from applying for another non-immigrant status or from filing for adjustment of status based on an immigrant petition. 8 U.S.C. 1254a(a)(5). TPS alone, however, does not lead to adjustment of status. 8 U.S.C. 1254a(e), (f)(1), (h). For the purposes of change of status and adjustment of status, an alien is considered as being in, and maintaining, lawful status as a nonimmigrant during the period in which the alien is granted TPS. 8 U.S.C. 1254a(f)(4).
At least 60 days before the extension and re-designation of TPS expire on November 2, 2005, the Secretary of DHS will review conditions in Sudan and determine whether the conditions for TPS designation continue to be met at that time, or whether the TPS designation should be terminated. 8 U.S.C. 1254a(b)(3)(A). Notice of that determination, including the basis for the determination, will be published in the
By the authority vested in DHS under sections 244(b)(1)(A), (b)(1)(C), (b)(3)(A), and (b)(3)(C) of the Act, DHS has determined, after consultation with the appropriate government agencies, that the conditions that prompted designation of Sudan for TPS continue to be met. Accordingly, DHS orders as follows:
(1) The designation of Sudan under sections 244(b)(1)(A) and (b)(1)(C) of the Act is extended for an additional 12-month period from November 2, 2004, to November 2, 2005. 8 U.S.C. 1254a(b)(3)(C).
(2) Sudan is re-designated for TPS under section 244(b)(1)(A) of the Act. 8 U.S.C. 1254a(b)(1)(A).
(3) There are approximately 449 nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) who have been granted TPS and who are eligible for re-registration.
(4) It is estimated that there are fewer than 1,500 nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) who are not currently registered for TPS, but who may be eligible for TPS under this re-designation.
(5) To maintain TPS, a national of Sudan (or an alien having no nationality who last habitually resided in Sudan) who was granted TPS during the initial designation period or re-designation period must re-register for TPS under the extension during the 60-day re-registration period from October 7, 2004 until December 6, 2004.
(6) To re-register under the extension, the applicant must file the following: (1) Form I-821, Application for Temporary Protected Status; (2) Form I-765, Application for Employment Authorization; (3) two identification photographs (full face frontal 2 inches by 2 inches); and (4) a biometrics fee of seventy dollars ($70) for each applicant age 14 and older. Applications submitted without the required fee and/or photos will be returned to the applicant. There is no fee for filing a Form I-821 for re-registration. If the applicant requests employment authorization, he or she must submit one hundred and seventy-five dollars ($175) or a properly documented fee waiver request, pursuant to 8 CFR 244.20, with the Form I-765. An applicant who does not request employment authorization must nonetheless file Form I-765 along with Form I-821, but is not required to submit the fee. Failure to re-register without good cause will result in the withdrawal of TPS. 8 U.S.C. 1254a(c)(3)(C).
(7) To register for TPS under the re-designation, a national of Sudan (or alien having no nationality who last habitually resided in Sudan) who has been continuously physically present and continuously resided in the United States since October 7, 2004 must register for TPS during the 180-day registration period from October 7, 2004 until April 5, 2005. Only aliens who have not already been granted TPS pursuant to the TPS designation for Sudan, and whose status has not been withdrawn, may apply for TPS under the re-designation.
(8) To register under the re-designation, the applicant must file the following: (1) Form I-821, Application for Temporary Protected Status, with fee; (2) Form I-765, Application for Employment Authorization; (3) two identification photographs (full face frontal 2 inches by 2 inches); (4) supporting evidence as required to establish eligibility for TPS benefits as provided in 8 CFR 244.9; and (5) a biometrics fee of seventy dollars ($70) for each applicant over age 14. Applications submitted without the required fee and/or photos will be returned to the applicant. If the applicant is between the ages of 14 and 65 (inclusive) and requests employment authorization, he or she must submit one hundred and seventy-five dollars ($175) or a properly documented fee waiver request, pursuant to 8 CFR 244.20, with the Form I-765. An applicant who does not request employment authorization must nonetheless file Form I-765 along with Form I-821, but is not required to submit the fee for filing the Form I-765. Failure to re-register without good cause will result in the withdrawal of TPS. 8 U.S.C. 1254a(c)(3)(C).
(9) At least 60 days before this extension and re-designation terminates on November 2, 2005, the Secretary will review the designation of Sudan for TPS and determine whether the conditions for designation continue to be met. 8 U.S.C. 1254a(b)(3)(A). Notice of that determination, including the basis for the determination, will be published in the
(10) Information concerning the extension of designation of Sudan for TPS will be available at local BCIS offices upon publication of this notice and on the BCIS Web site at
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
In compliance with section 202(c) of the National Housing Act, this notice advises of the cause and description of administrative actions taken by HUD's Mortgagee Review Board against HUD-approved mortgagees.
David E. Hintz, Acting Secretary to the Mortgagee Review Board, 451 Seventh Street, SW., Washington, DC 20410-8000, telephone: (202) 708-3856, extension 3594. A Telecommunications Device for Hearing- and Speech-Impaired Individuals (TTY) is available at (800) 877-8339 (Federal Information Relay Service).
Section 202(c)(5) of the National Housing Act (added by section 142 of the Department of Housing and Urban Development Reform Act of 1989, Pub. L. 101-235, approved December 15, 1989), requires that HUD “publish a description of and the cause for administrative action against a HUD-approved mortgagee” by the Department's Mortgagee Review Board (Board). In compliance with the requirements of section 202(c)(5), this notice advises of administrative actions that have been taken by the Board from February 1, 2003 to July 31, 2004.
Fish and Wildlife, Interior.
Notice of document availability.
The U.S. Fish and Wildlife Service (Service) provides notice that a draft Conservation Plan for the Sacramento Mountains checkerspot butterfly (
Comments on the draft Conservation Plan must be submitted directly to the Service (
The Service will host a public informational session in the Village Council Chambers Room at 201 Burro Street Cloudcroft, New Mexico, on October 13, 2004, from 5 p.m. to 7 p.m.
If you wish to comment via mail, comments and materials should be addressed to the Threatened and Endangered Species Division, Fish and Wildlife Service Southwest Regional Office, Ecological Services, P.O. Box 1306, Albuquerque, New Mexico, 87103-1306. Comments and materials received will be made available for public inspection during normal business hours, by appointment, at the above address. A copy of this document has been posted on the Fish and Wildlife Service Web site at
Sarah E. Rinkevich, Fish and Wildlife Biologist, or Tracy Scheffler, Fish and Wildlife Biologist, Fish and Wildlife Service, Southwest Regional Office, at the above address (505) 248-6920.
The Sacramento Mountains checkerspot butterfly is found only in high elevation mountain-meadows within the Sacramento Mountains of central New Mexico. In January 1999, the Southwest Center for Biological Diversity petitioned the Service to emergency list the Sacramento Mountains checkerspot butterfly as endangered. The Service published a notice on December 27, 1999, finding that the petition presented substantial information to indicate that listing may be warranted, but that emergency listing was not warranted. The Service then commenced a status review of the species. On September 6, 2001, the Fish and Wildlife Service published a 12-month finding and proposed rule to list the Sacramento Mountains checkerspot butterfly as endangered with critical habitat (66 FR 46575). Habitat loss from proposed development, drought and wildfire, and threats from collection were stated as the reasons for the proposed listing.
In response to growing interest by the local community to conserve the butterfly, the Service began coordination in 2004 with local and Federal partners to assess current threats to the species and develop a draft Conservation Plan. The goal of the draft Conservation Plan is to provide conservation and management recommendations for public and private lands within the range of the butterfly as necessary to alleviate threats to the species and its habitat. Specific conservations actions in the draft Conservation Plan include time and cost estimates and responsible partners.
The Village of Cloudcroft, Otero County, Forest Service, and the Service have signed a Memorandum of Understanding to demonstrate the commitments of the parties to the implementation of the Conservation Plan.
The Service solicits written comments on the draft Conservation Plan. All comments received by the date specified above will be considered prior to approval of the Conservation Plan. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comments. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of public meeting.
Notice is hereby given, in accordance with Public Laws 92-463 and 94-579, that the California Desert District Advisory Council to the Bureau of Land Management (BLM), U.S. Department of the Interior, will participate in a field tour of the BLM-administered public lands.
Friday, October 22, 2004, from 8 a.m. to 5 p.m., and meet in formal session on Saturday, October 23, from 8 a.m. to 4 p.m. The Saturday meeting will be held at the Needles City Council Chambers, located at 1111 Bailey, Needles, California.
The field office is located at 101 West Spikes Road in Needles, California.
The Council and interested members of the public will depart for a field tour from the parking lot of the BLM's field office in Needles at 8 a.m. Tour stops will include the Route 66 interpretive display and a BLM grazing allotment. Presentations and discussions will focus on current grazing management and proposed revisions to the grazing regulations. The public is welcome to participate in the tour, but should plan on providing their own transportation, drinks, and lunch.
Agenda items tentatively scheduled for the Saturday Council meeting will include the election of officers, reports by Advisory Council members, the District Manager and the five District field office managers, a briefing on the U.S. Fish and Wildlife Service's raven management initiative, and an update on the Desert Managers Group's Desert Tortoise Education and Outreach Plan. BLM will also brief the Council on the status of the Eastern San Diego County Resource Management Plan, and review the 10-year anniversary of the passage of the California Desert Protection Act.
All Desert District Advisory Council meetings are open to the public. Time for public comment may be made available by the Council Chairman during the presentation of various agenda items, and is scheduled at the end of the meeting for topics not on the agenda.
Written comments may be filed in advance of the meeting for the California Desert District Advisory Council, c/o Bureau of Land
Bureau of Land Management, Department of the Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management, New Mexico Resource Advisory Council (RAC) will meet as indicated below.
The meeting dates are November 9-10, 2004, at the Drury Inn, 4310 The 25 Way Northeast, Albuquerque, NM. An optional field trip is planned for Monday, November 8, 2004. The public comment period is scheduled for November 8, 2004, from 6-7 p.m. at the Drury Inn. The public may present written comments to the RAC. Depending on the number of individuals wishing to comment and time available, oral comments may be limited. The three established RAC working groups may have a late afternoon or an evening meeting on Tuesday, November 9, 2004.
The 15-member RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in New Mexico. All meetings are open to the public. At this meeting, topics include issues on renewable and nonrenewable resources.
Theresa Herrera, New Mexico State Office, Office of External Affairs, Bureau of Land Management, PO Box 27115, Santa Fe, New Mexico 87502-0115, (505) 438-7517.
Bureau of Land Management (BLM), Interior.
Notice of realty action.
A 0.45 acre parcel of public land in Lane County, Oregon, is being considered for direct sale to James L. Bean to resolve an inadvertent occupancy trespass. The parcel is the minimum size possible to resolve the encroachment.
Submit comments on or before November 22, 2004.
Address all written comments concerning this notice to Emily Rice, Field Manager, Upper Willamette Field Office, PO Box 10226, Eugene, Oregon 97440.
Cheryl Adcock, Realty Specialist at (541) 683-6145.
The following described public land has been examined and found suitable for sale under Sections 203 and 209 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1713 and 1719). The parcel proposed for sale is identified as follows:
The area described contains 0.45 acre, more or less, in Lane County, Oregon. This parcel will be sold at no less than the appraised market value which has been determined to be $10,000.00. In accordance with 43 CFR 2711.3-3(a) (5) direct sale procedures are appropriate since the land has been inadvertently occupied and utilized for many years as a portion of a residential yard. The Eugene District Resource Management Plan as amended, August 6, 1998, identifies “unintentional occupancy trespass sites discovered in the future * * *” as suitable for disposal.
James L. Bean will be allowed 30 days from receipt of a written offer to submit a deposit of at least 10 percent of the appraised market value of the parcel and within 180 days thereafter to submit the balance.
The following rights, reservations, and conditions will be included in the Deed conveying the land:
A reservation to the United States for a right-of-way for ditches and canals constructed by the authority of the United States. Act of August 30, 1890 (43 U.S.C. 945).
The mineral interests being offered for conveyance have no known mineral value. Acceptance of the direct sale offer constitutes an application for conveyance of the mineral interests also being offered under the authority of Section 209(b) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1719). In addition to the full purchase price, a nonrefundable fee of $50 will be required for purchase of the mineral interests to be conveyed simultaneously with the sale of the land.
The land described is segregated from appropriation under the public land laws, including the mining laws, pending disposition of this action or 270 days from the date of publication of this notice, whichever occurs first.
Detailed information concerning this land sale, including the reservations, sale procedures and conditions, planning and environmental documents, appraisal report, and mineral report is available for review at the Eugene District Office, Bureau of Land Management, 2890 Chad Drive, Eugene, Oregon 97470.
In the absence of any objections, this proposal will become the final determination of the Department of the Interior.
Comments, including names, street addresses, and other contact information of respondents, will be available for public review. Individual respondents may request confidentiality. If you wish to request that the BLM consider withholding your name, street address and other contact information,
Bureau of Land Management, Interior.
Notice of filing of plats of surveys.
The Bureau of Land Management (BLM) has officially filed the plats of survey of the lands described below in the BLM Idaho State Office, Boise, Idaho, effective 9 a.m., on the dates specified.
Bureau of Land Management, 1387 South Vinnell Way, Boise, Idaho, 83709-1657.
These surveys were executed at the request of the Bureau of Land Management to meet certain administrative and management purposes: The plat, in two sheets, constituting the entire survey record of the dependent resurvey of a portion of the subdivisional lines and a portion of the subdivision of section 16, and a metes-and-bounds survey of a portion of the Craters of the Moon National Monument in sections 15, 16, 21, and 22, in T. 2 N., R. 24 E., Boise Meridian, Idaho, was accepted July 19, 2004. The plat constituting the entire survey record of the dependent resurvey of a portion of the subdivisional lines and a metes-and-bounds survey of a portion of the Craters of the Moon National Monument in sections 2, 3, and 11, in T. 6 S., R. 28 E., Boise Meridian, Idaho, was accepted August 25, 2004.
The plat representing the dependent resurvey of a portion of the east boundary, a portion of the subdivisional lines, and the subdivision of sections 13 and 24, in T. 1 S., R. 3 W., Boise Meridian, Idaho, was accepted August 26, 2004.
These surveys were executed at the request of the Bureau of Land Management to meet certain administrative needs of the Bureau of Indian Affairs. The lands surveyed are: The plat representing the dependent resurvey of a portion of the 1892 south boundary, the 1892 east boundary, and a portion of the subdivisional lines, the subdivision of section 13, and the survey of the 1999-2003 meanders of the Blackfoot River, the North Boundary of the Fort Hall Indian Reservation, of lot 10, and a portion of the 1999-2003 median line of the Blackfoot River, all in section 13, in T. 3 S., R. 35 E., Boise Meridian, Idaho, was accepted September 30, 2004. The plat representing the dependent resurvey of a portion of the south boundary, an informative traverse of the 1875 west boundary, a portion of the subdivisional lines and 1907 meanders of the left bank of the Blackfoot River in section 7, the subdivision of sections 7, 18, 19, and 31, and the survey of the 2002-2004 meanders of the Blackfoot River and North Boundary of the Fort Hall Indian Reservation in sections 7 and 18, in T. 3 S., R. 36 E., Boise Meridian, Idaho, was accepted September 30, 2004.
Department of the Interior, National Park Service.
Notice and request for comments.
The National Park Service (NPS) Social Science Program has submitted to the Office of Management and Budget (OMB) a request for clearance of a renewed program of social science surveys of the public related to the mission of the NPS. The NPS is publishing this notice to inform the public of this program and to request comments on the program.
Since many of the NPS surveys are similar in terms of the populations being surveyed, the types of questions being asked, and research methodologies, the NPS proposed to OMB and received clearance for a program of approval for NPS-sponsored public surveys (OMB# 1024-0224 exp. 8/31/2001; three-year extension granted in September 2001, exp. 9/30/2004). The program presented an alternative approach to complying with the Paperwork Reduction Act (PRA). In the five years since the NPS received clearance for the program of expedited approval, 193 public surveys have been conducted in units of the National Park System. The benefits of this program have been significant to the NPS, Department of the Interior (DOI), OMB, NPS cooperators, and the public. Significant time and cost savings have been incurred. Expedited approval was typically granted in 45 days or less from the date the Principal Investigator first submitted a survey package for review. This is a significant reduction over the approximate 6 months involved in the standard OMB approval process. It is estimated that the expedited approval process saved a total of 870 months in Fiscal Years 1999-2003. In five years, the expedited approval process has accounted for a cost savings to the federal government and PIs estimated at $348,001. The initial program included surveys of park visitors. The program renewed in September 2001 included surveys of park visitors, potential park visitors, and residents of communities near parks. The current extension request proposes to continue with a program of social science surveys of park visitors, potential park visitors, and residents of communities near parks.
Under provisions of the Paperwork Reduction Act of 1995 and 5 CFR Part 1320, Reporting and Record Keeping Requirements, the National Park Service is soliciting comments on: (a) Whether the collection of information is necessary for the proper performance of the functions of the NPS, including whether the information will have practical utility; (b) the accuracy of the NPS estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (c) the quality, utility, and clarity of the information to be collected; and (d) how 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 forms of information technology.
Public comments will be accepted on or before 30 days from the date of publication in the
You may submit comments directly to the Desk Officer for the Department of the Interior (OMB #1024-0224), Office of Management and Budget Office of Information and Regulatory Affairs (OMB-OIRA) by fax at 202-395-5806 or e-mail at
Dr. James H. Gramann. Voice: 202-513-7189, Fax: 202-371-2131, E-mail:
Information Collection Clearance Officer, WASO Administrative Program Center, National Park Service.
National Park Service, Interior.
Official insignia designation.
This notice serves as official designation of the insignia (shown below) for the National Park Service Volunteers-in-Parks (VIP) program. It replaces an earlier insignia in use since 1970.
Action described will be effective upon publication of this notice.
Joy Pietschmann, Service-wide VIP Program Coordinator, National Park Service, 1849 C Street, NW., Mailstop 2450, Washington, DC 20240. Telephone: (202) 513-7141. E-mail:
Authority for the National Park Service VIP program is found in the Volunteers in the Parks Act of 1969, 16 U.S.C. 18g-18j.
The insignia depicted replaces an earlier symbol developed in 1970. It will serve as the official uniform patch and logo for the VIP program. The National Park Service began using the new insignia in January 2004. Use of the insignia is controlled by the Director of the National Park Service.
In making this prescription, notice is hereby given that whoever manufactures, sells, or possesses this insignia, or any colorable imitation thereof, or photographs or prints or in any other manner makes or executes any engraving, photograph or print, or impression in the likeness of this insignia, or any colorable imitation thereof, without written authorization from the United States Department of the Interior is subject to the penalty provisions of 18 U.S.C. 701.
National Park Service, Interior.
Official insignia designation.
This notice serves as official designation of the insignia (shown below) for the National Park Service Volunteers-in-Parks (VIP) Master Ranger Corps program.
Action described will be effective upon publication of this notice.
Joy Pietschmann, Service-wide VIP Program Coordinator, National Park Service, 1849 C Street, NW., Mailstop 2450, Washington, DC 20240. Telephone: (202) 513-7141. E-mail:
Authority for the National Park Service VIP program is found in the Volunteers in the Parks Act of 1969, 16 U.S.C. 18g-18j. The Master Ranger Corps is a new part of the VIP program.
The insignia depicted will serve as the official uniform patch and logo for the Master Ranger Corps. The National Park Service began using the insignia in January 2004. Use of this insignia is controlled by the Director of the National Park Service.
In making this prescription, notice is hereby given that whoever manufactures, sells, or possesses this insignia, or any colorable imitation thereof, or photographs or prints or in any other manner makes or executes any engraving, photograph or print, or impression in the likeness of this insignia, or any colorable imitation thereof, without written authorization from the United States Department of the Interior is subject to the penalty provisions of 18 U.S.C. 701.
Department of the Interior, National Park Service, Chesapeake and Ohio Canal National Historical Park Advisory Commission.
Notice of meeting.
Notice is hereby given that a meeting of the Chesapeake and Ohio Canal National Historical Park Advisory Commission (the Commission) will be held on Friday, October 15, 2004, at Rockwood Manor, 11001 MacArthur Blvd., Potomac, Maryland. The meeting will begin at 9 a.m.
Items on the agenda include the Georgetown University boathouse, planning initiatives, construction and development projects and park operational issues.
The meeting will be open to the public. Any person may file with the Commission a written statement concerning the matters to be discussed. Persons who wish to file a written statement or testify at the meeting or who want further information concerning the meeting may contact Superintendent Kevin Brandt at (301) 714-2201.
October 15, 2004, at 9 a.m.
11001 MacArthur Blvd., Potomac, Maryland 20854.
Superintendent Kevin Brandt, (301) 714-2201.
The Commission was established by
Members of the Commission are: Mrs. Sheila Rabb Weidenfeld, Chairman, Mr. Charles J. Weir, Mr. Barry A. Passett, Mr. Terry W. Hepburn, Ms. Elise B. Heinz, Ms. JoAnn M. Spevacek, Mrs. Mary E. Woodward, Mrs. Donna Printz, Mrs. Ferial S. Bishop, Ms. Nancy C. Long, Mrs. Jo Reynolds, Dr. James H. Gilford, Brother James Kirkpatrick.
National Park Service, Interior.
Notice of October 22, 2004 Meeting.
This notice sets forth the date of the October 22, 2004 meeting of the Flight 93 Advisory Commission.
The public meeting will be held on October 22, 2004 from 10 a.m. to 4 p.m.
The meeting will be held at the Flight 93 National Memorial Office, 109 West Main Street, Newberry Building, Somerset, Pennsylvania, 15501.
The October 22, 2004 meeting will consist of:
Comments from the public will be received after each committee briefing.
Joanne M. Hanley, Superintendent, Flight 93 National Memorial, 109 West Main Street, Somerset, PA 15501.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning agenda items. The statement should be addressed to the Flight 93 Advisory Commission, 109 West Main Street, Somerset, PA 15501.
National Park Service, Interior.
Notice.
In accordance with the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470) and the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix (1988), the Preservation Technology and Training Board will meet October 18, 2004, in the 3rd floor Conference Room of the Main Building at Ellis Island National Monument, New York, NY. The public can access the Island via the Circle Line Ferry, departing from Battery Park in Manhattan, NY, or Liberty State Park, NJ. Those wishing to be present for the beginning of the meeting should plan to take the 8:30 a.m. ferry from either location. Ferry schedules can be confirmed online prior to the meeting at www.circleline.com. Notification of this meeting may appear in the
The meeting at Ellis Island National Monument, New York, NY, is scheduled for October 18, 2004. The meeting will begin at 9:15 a.m. and end no later than 5:15 p.m.
The Board was established by Congress to provide leadership, policy advice, and professional oversight to the National Center for Preservation Technology and Training (NCPTT), as required under the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470).
The Board meeting's agenda will include NCPTT operations, budget, and program development; NCPTT business and strategic plans; Preservation Technology and Training grants; the Heritage Education program; and PTT Board workgroup reports.
The Board meeting is open to the public. Facilities and space for accommodating members of the public are limited, however, and persons will be accommodated on a first-come, first-served basis. Any member of the public may file a written statement concerning the matters to be discussed.
Minutes of the meeting will be available for public inspection no later than 90 days after the meeting at the office of the Deputy Associate Director, Cultural Resources, National Park Service, 1849 C Street NW-3128 MIB, Washington, DC 20240, telephone (202) 208-7625.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) terminating the above-captioned investigation as to respondent Longacre Industries, Inc. on the basis of a consent order.
Timothy P. Monaghan, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3152. Copies of the public version of the ID and all nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on June 20, 2003, based on a complaint filed by Auto Meter Products, Inc. (“Auto Meter”) of Sycamore, Illinois. 68 FR 37023. The complaint alleged violations of section 337 of the Tariff Act of 1930 in the importation and sale of certain automotive measuring devices, products containing same, and bezels for such devices, by reason of infringement of U.S. Registered Trademark Nos. 1,732,643 and
On July 2, 2004, Auto Meter and respondent Longacre Industries, Inc. (“Longacre ”) filed a joint motion to terminate based on a settlement agreement between Auto Meter and Longacre and a consent order stipulation with a proposed consent order.
On September 1, 2004, the ALJ issued an ID (Order No. 37) terminating the investigation as to respondent Longacre on the basis of a settlement agreement and consent order. The Commission investigative attorneys filed a response in support of the joint motion. No petitions for review of the ID were filed.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
FR Doc. 04-22033 did not publish in the issue of Friday, October 1, 2004. It is being published in its entirety in the issue of October 7, 2004.
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) terminating the above-captioned investigation as to respondent Longacre Industries, Inc. on the basis of a consent order.
Timothy P. Monaghan, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3152. Copies of the public version of the ID and all nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on June 20, 2003, based on a complaint filed by Auto Meter Products, Inc. (“Auto Meter”) of Sycamore, Illinois. 68 FR 37023. The complaint alleged violations of section 337 of the Tariff Act of 1930 in the importation and sale of certain automotive measuring devices, products containing same, and bezels for such devices, by reason of infringement of U.S. Registered Trademark Nos. 1,732,643 and 1,497,472, and U.S. Supplemental Register No. 1,903,908, and infringement of the complainant's trade dress. Subsequently, seven more firms were added as respondents based on two separate motions filed by complainant Auto Meter. The investigation was terminated as to nine respondents on the basis of consent orders. Six respondents were found to be in default.
On July 2, 2004, Auto Meter and respondent Longacre Industries, Inc. (“Longacre”) filed a joint motion to terminate based on a settlement agreement between Auto Meter and Longacre and a consent order stipulation with a proposed consent order.
On September 1, 2004, the ALJ issued an ID (Order No. 37) terminating the investigation as to respondent Longacre on the basis of a settlement agreement and consent order. The Commission investigative attorneys filed a response in support of the joint motion. No petitions for review of the ID were filed.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
FR Doc. 04-22033 did not publish in the issue of Friday, October 1, 2004. It is being published in its entirety in the issue of October 7, 2004.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to terminate the above-captioned investigation with a finding of no violation of section 337.
Wayne Herrington, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3090. Copies of the ALJ's ID and all other nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on June 2, 2003, based on a complaint filed by Energizer Holdings, Inc. and Eveready Battery Company, Inc., both of St. Louis, Missouri. 68 FR 32771 (June 2, 2003). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain zero-mercury-added alkaline batteries, parts thereof, and products containing same by reason of infringement of claims 1-12 of U.S. Patent No. 5,464,709 (“the ‘709 patent”). The complaint and notice of investigation named 26 respondents and were later amended to include an additional firm as a respondent. The investigation has been terminated as to claims 8-12 of the ‘709 patent. Several respondents have been terminated from the investigation for various reasons.
On June 2, 2004, the ALJ issued his final ID finding a violation of section 337. He also recommended the issuance of remedial orders. A number of the remaining respondents petitioned for review of the ID. Complainants and the Commission investigative attorney filed oppositions to those petitions. On July 9, 2004, the Commission issued a notice that it had determined to review the ALJ's final ID in its entirety. In that notice, the Commission requested written submissions on the issues on review (noting issues and questions it particularly sought briefing on), as well as on remedy, the public interest, and bonding. Complainants, respondents, and the Commission investigative attorney filed written submissions.
Having considered the record in this investigation, including the written submissions on the issues on review and on remedy, the public interest, and bonding, the Commission has determined to terminate this investigation with a finding of no violation of section 337. Specifically, the Commission has determined that the asserted claims are invalid for indefiniteness. The Commission has determined to take no position on the other issues raised in this investigation. Finally, the Commission has determined to deny as moot the May 21, 2004, motion of respondent Ningbo Baowang Battery Co. Ltd. to terminate the investigation as to it, as well as its motion to reopen the evidentiary record.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and sections 210.41-.51 of the Commission's Rules of Practice and Procedure (19 CFR 210.41-.51).
By order of the Commission.
Notice is hereby given that on September 23, 2004, a proposed Settlement Agreement (the “Agreement”) in In re: Farmland Industries, Inc.,
In this settlement the United States resolves the Environmental Protection Agency's claim for cost recovery for costs to be incurred remediating environmental contamination at the Obee Road Superfund Site in Hutchinson, Kansas. Farmland Industries, Inc. has been identified as a responsible party under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) in connection with this Site. and civil penalties under CERCLA, the Clean Water Act, and the Clean Air Act against Farmland Industries, Inc. The Settlement Agreement provides that the United States will have an allowed general unsecured claim of $940,000, in settlement of the above-described claim. The United States previously has recovered from Farmland its past costs incurred at the Obee Road Site.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Settlement Agreement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to In re: Farmland Industries, Inc.,
The Settlement Agreement may be examined at the Office of the United States Attorney, 400 E. 9th Street, Kansas City, MO 64106, and at U.S. EPA Region 7, 901 N. 5th Street, Kansas City, Kansas 66101. During the public comment period, the Settlement Agreement may also be examined on the following Justice Department Web site,
Notice is hereby given that on Monday, September 27, 2004, a proposed Consent decree (“proposed Decree”) in
In this civil enforcement action under the federal Clean Air Act (“Act”), the United States alleges that in 2003, Mirant, an electric utility, failed to comply with a provision in the Operating Permit for the Potomac River Generating Station that limited that plant's NO
The proposed Decree lodged with the Court addresses this violation at the Potomac river Generating Station (located in Alexandria, Virginia) by requiring relief at that plant, as well as at three other Mirant coal-fired electric generating facilities: the Chalk Point Generating Plant (in Prince George's County, Maryland); the Morgantown Generating Plant (in Charles County, Maryland); and the Dickerson Generating Plant (in Montgomery County, Maryland).
The proposed Decree requires the installation of NO
The proposed Decree also requires Mirant to implement a series of environmental projects designed to reduce particulate matter emissions from the Potomac River Plant. They are described in the proposed Decree and are valued at about $1 million. In addition, Mirant also will pay a civil penalty of $250,000 to the United States, and a civil penalty of $250,000 to the Commonwealth of Virginia.
Joining in the proposed Decree as co-plaintiffs are the State of Maryland and the Commonwealth of Virginia.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The proposed Decree may be examined at the offices of the United States Attorney, Eastern District of Virginia, 2100 Jamieson Avenue, Alexandria, Virginia, and at the offices of U.S. EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103-2029.
During the public comment period, the proposed Decree may also be examined on the following Department of Justice Web site,
In accordance with 28 CFR 50.7, notice is hereby given that a proposed Second Supplement to the Consent Decree in
On November 24, 1998, the Court entered a Consent Decree in this action which required the City, among other obligations, to select a site for, design, and construct the Croton filtration plant. The City selected a site for the plant at the Mosholu Golf Course in Van Cortlandt Park in the Bronx. However, on February 8, 2001, the New York State Court of Appeals held that the City could not construct the plant at the Mosholu Golf Course Site without first obtaining approval from the New York State Legislature. The City sought, but did not promptly obtain legislative approval to construct the plant at the Mosholu Golf Course Site.
In view of the lack of legislative approval for the Mosholu Golf Course Site in 2001-2002, the parties to the Consent Decree negotiated in 2001 and the Court entered in 2002 a first Supplement to the Consent Decree (“first Supplement”), which required the City to select a new site and modified the deadlines for construction of the filtration plant. The City identified two alternative sites for construction of the filtration plant, a site in the Town of Mount Pleasant in Westchester County, denominated the Eastview Site, and a site adjacent to the Harlem River in Bronx County, denominated the Harlem River Site. The first Supplement to the Consent Decree required the City to conduct some initial study and design work relating to the Eastview Site and the Harlem River Site and to identify its preferred site in a draft environmental impact statement to be submitted on April 30, 2003. The City was to select one of these two sites or, if legislative approval for the Mosholu Golf Course Site was obtained by April 15, 2003 and other requirements were met, the City could instead select the Mosholu Golf Course Site.
Legislative approval for the Mosholu Golf Course Site was not obtained by April 15, 2003. The City failed to select a preferred site under the requirements of the first Supplement by April 30, 2003. However, on June 20, 2003, the State legislature passed a bill allowing use of the Mosholu Golf Course Site for the Croton filtration plant, which was signed into law on July 22, 2003. The State legislation also required that the City conduct a supplemental environmental impact statement prior to selecting the preferred filtration plant site.
On June 30, 2004, the City completed a final supplemental environmental impact statement and selected the Mosholu Golf Course Site as its preferred site for the Croton filtration plant. The City also selected the Eastview Site as its backup site for the Croton filtration plant.
As a result of the City's failure to comply with the April 30, 2003 deadline for selecting its preferred site and the later enactment of the State legislation, the Parties have negotiated a further modification of the Consent Decree, which is set forth in the Second Supplement to the Consent Decree (“Second Supplement”). The Second Supplement supercedes the first Supplement.
The Second Supplement sets forth a modified schedule for the City to construct filtration facilities. Consistent with the terms of the Second Supplement, the City selected its preferred and backup sites. The Second Supplement requires the City to complete construction of the Croton filtration plant at is preferred site, the Mosholu Golf Course Site, by May 1, 2011, and commence full operation of the Croton filtration plant by October 31, 2011. The Second Supplement also provides that, if the United States, State, or the City determines during the course of implementation of the Second Supplement that the City cannot complete the plant at the preferred site within the schedule set forth in the Second Supplement or within a reasonable time period agreed to by the parties, the City shall construct the plant at its backup site, the Eastview Site. In addition, the Second Supplement provides for continued implementation of interim measures and for payment by the City of stipulated penalties in the amount of $180,000 for its failure to select a preferred site timely in accordance with
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, written comments relating to the proposed Second Supplement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, c/o Deborah B. Zwany, Assistant U.S. Attorney, Eastern District of New York, One Pierrepont Plaza, 14th Floor, Brooklyn, New York 11201, and should refer to
The proposed Second Supplement may be examined at the office of the United States Attorney for the Eastern District of New York, One Pierrepont Plaza, 14th Floor, Brooklyn, New York 11201, and at the U.S. Environmental Protection Agency, Region II office, 290 Broadway, New York, New York 10007. During the public comment period, the Second Supplement may also be examined on the following Department of Justice Web site:
In accordance with 28 CFR 50.7 and section 122 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9622, the Department of Justice gives notice that a proposed First Amendment to the Consent Decree, in
Under the proposed First Amendment to the Consent Decree, the Performing Settling Defendants are obligated to implement a Record of Decision (“ROD”) Amendment, issued by the U.S. Environmental Protection Agency (“EPA”) on February 27, 2003, of a 1990 ROD for the Site. The ROD Amendment requires the establishment of a new municipal water service zone or alternative institutional controls around a newly discovered area of groundwater contamination and a buffer zone within a determined area extending beyond the contamination, in which every property in the zone will be hooked up to the City of Kalmazoo's municipal water system, and in which groundwater use will be restricted. The ROD Amendment revises the groundwater cleanup standards established in the original 1990 ROD, replacing the Michigan Act 307 type B standards with the current residential standards established under Part 201 of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (formerly known as Michigan Act 307). The ROD Amendment also provides for the continuation of natural attenuation studies and calls for the preparation of the landfill cap design to continue while those studies are underway.
Under the proposed First Amendment to Consent Decree, Plaintiff and the Performing Settling Defendants agree to modify the terms of the Consent Decree, as provided by Paragraph 85 of the Consent Decree, to require the Performing Settling Defendants to implement the provisions of the February 27, 2003 ROD Amendment. The Settling Defendants other than the Performing Settling Defendants are not signatories to the proposed First Amendment to the Consent Decree. However, the First Amendment to the Consent Decree does not add to or change any of the settlement obligations of the Settling Defendants other than the Performing Settling Defendants, and none of the settling Third-Party Defendants will have any obligations to implement the provisions of the February 27, 2003 ROD Amendment.
To facilitate future modifications to the Consent Decree regarding implementation of the Work, if any, the First Amendment to the Consent Decree also effectively modifies the provisions of Paragraph 85 in the Consent Decree so that notification to the Settling Defendants other than the Performing Settling Defendants for any future material modifications to the Work under the Consent Decree will not be required.
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the proposed First Amendment to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice, PO Box 7611, Washington, DC 20044-7611, and should refer to
The proposed First Amendment to the Consent Decree may be examined at: (1) the Office of the United States Attorney for the Western District of Michigan, 330 Ionia Ave. NW., Suite 501, Grand Rapids, MI 49503, (616-456-2404); and (2) the United States Environmental Protection Agency (Region 5), 77 West Jackson Blvd., Chicago, IL 60604-3507 (contact: Stuart Hersh (312-886-6235)).
During the public comment period, the proposed First Amendment to the Consent Decree may also be examined on the following U.S. Department of Justice Web site,
30-day notice of information collection under review: National Firearms Act (NFA)—Special Occupational Taxes (SOT).
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until November 8, 2004. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
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:
(1)
(2)
(3)
(4)
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply: It is estimated that 2,800 taxpayers will complete forms ATF F 5630.5R and ATF F 5630.5RC in approximately 20 minutes (10 minutes for each form). It is also estimated that 200 new taxpayers will complete ATF F 5630.7 in its entirety in approximately 15 minutes. The total number of respondents for this information collection is 3,000.
(6) An estimate of the total public burden (in hours) associated with the collection: The total burden for ATF F 5630.5R and ATF F 5630.5RC is 933 hours. The total burden for ATF F 5630.7 is 50 hours. The estimated total public burden associated with this information collection is 983 hours.
If additional information is required contact: Brenda E. Dyer, Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, DC 20530.
30-day notice of information collection under review: Survey on Sexual Violence.
The Department of Justice (DOJ), Office of Justice Programs (OJP) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until November 8, 2004. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. 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:
(1)
(2)
(3)
(4)
(5)
(6)
Brenda E. Dyer, Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street NW, Washington, DC 20530.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comment.
OSHA solicits comments concerning its request for an extension of the information collection requirement specified by paragraph (g)(4)(ii)(I) of the Cranes and Derricks Standard for Construction (29 CFR 1926.550). This paragraph requires employers to post a plate or other permanent marking that indicates the weight of a personnel-hoisting platform and its rated-load capacity or maximum intended load.
Comments must be submitted by the following dates:
You may submit comments, identified by OSHA Docket No. ICR-1218-0151 (2004), by any of the following methods:
(For additional information on submitting comments, please see the “Public Participation” heading in the
Todd Owen, Directorate of Standards and Guidance, OSHA, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2222.
You may submit comments and supporting materials in response to this notice by (1) hard copy, (2) fax transmission (facsimile), or (3) electronically through the OSHA Web page. Because of security related problems, there may be a significant delay in the receipt of comments by regular mail. Please contact the OSHA Docket Office at (202) 2693-2350 (TTY (877) 889-5627) for information about security procedures concerning the delivery of materials by express delivery, hand delivery and messenger service.
All comments, submissions and background documents are available for inspection and copying at the OSHA Docket Office at the above address. Comments and submissions posted on OSHA's Web page are available at
Electronic copies of this
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
This program ensures that information is in the desired format, reporting burden (time and costs) is minimal, collection instruments are clearly understood, and OSHA's estimate of the information collection burden is accurate. The Occupational Safety and Health Act of 1970 (the Act) (29 U.S.C. 651
Paragraph (g)(4)(ii)(I) of the Cranes and Derricks Standard for Construction (Sec. 1926.550) requires employers to post conspicuously with a plate or other permanent marking the weight and rated load capacity or maximum intended loads of each platform used to raise and lower employees to a worksite using a crane or derrick. This requirement helps employers to avoid exceeding the lifting capacity of such platforms and the cranes or derrick being used to lift the platforms. Therefore, this requirement can prevent the platform, crane, or derrick from collapsing and causing serious injury to death to employees on or below the platform.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is proposing to extend the information collection requirement specified by paragraph (g)(4)(ii)(I) of Sec. 1926.550. The Agency will summarize the comments submitted in response to this notice and will include this summary in its request to OMB to extend the approval of this information collection requirements contained in the Standard.
John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
The U.S. Nuclear Regulatory Commission (NRC) has issued for public comment a draft of a new guide in the agency's Regulatory Guide Series. This series has been developed to describe and make available to the public such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
The new draft regulatory guide, entitled “Risk-Informed, Performance-Based Fire Protection for Existing Light-Water Nuclear Power Plants,” is temporarily identified by its task number, DG-1139, which should be mentioned in all related correspondence. The draft regulatory guide contains the staff's regulatory position on “Guidance for Implementing a Risk-Informed, Performance-Based Fire Protection Program Under 10 CFR 50.48(c),” which the Nuclear Energy Institute (NEI) has promulgated as document #NEI 04-02.
It is the staff's intent to endorse a version of NEI 04-02, as appropriate, in the final regulatory guide, consistent with the new risk-informed, performance-based fire protection rule, specified in Title 10, Section 50.48(c), of the
The NRC staff is soliciting comments on draft regulatory guide DG-1139, and comments may be accompanied by relevant information or supporting data. Please mention DG-1139 [50.48(c) RG] in the subject line of your comments. Comments on this draft regulatory guide submitted in writing or in electronic form will be made available to the public in their entirety on the NRC's rulemaking Web site. Personal information will not be removed from your comments. You may submit comments by any of the following methods.
Request for information about draft regulatory guide DG-1139 may be directed to Paul W. Lain at (301) 415-2346 or via email to
Comments would be most helpful if received by December 15, 2004. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
Electronic copies of the draft regulatory guide are available through the NRC's public Web site under Draft Regulatory Guides in the Regulatory Guides document collection of the NRC's Electronic Reading Room at
For the U.S. Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of opportunity for public comment.
The U.S. Nuclear Regulatory Commission (NRC) is proposing to issue a generic letter (GL) to request that addressees submit a description of their program for ensuring steam generator (SG) tube integrity for the interval between inspections and description of the methodology used to assess the effects of non-pressure-related loads such as bending on SG tube integrity. Addressees should also provide a safety assessment demonstrating that the SG tubes will have adequate structural and leakage integrity (with appropriate regulatory margins) at the time of their next SG tube inspection, taking into account the effects of non-pressure-related loads.
This
Comment period expires December 6, 2004. Comments submitted after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.
Submit written comments to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Mail Stop T6-D59, Washington, DC 20555-0001, and cite the publication date and page number of this
Kenneth Karwoski, NRR at 301-415-2752 or by e-mail at
All holders of operating licenses for pressurized-water reactors (PWRs), except those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel and {the following plants that have already modified their technical specifications to be consistent with those in the Attachment}.
The U.S. Nuclear Regulatory Commission (NRC) is issuing this generic letter (GL) to:
(1) Request that addressees submit a description of their program for ensuring steam generator (SG) tube integrity for the interval between inspections; and
(2) Request that addressees submit a description of the methodology used to assess the effects of non-pressure-related loads such as bending on SG tube integrity. Addressees should also provide a safety assessment demonstrating that the SG tubes will have adequate structural and leakage integrity (with appropriate regulatory margins) at the time of their next SG tube inspection, taking into account the effects of non-pressure-related loads.
Steam generator tubes function as an integral part of the reactor coolant pressure boundary (RCPB) and also serve to isolate radiological fission products in the primary coolant from the secondary coolant and the environment. For the purposes of this generic letter, tube integrity means that the tubes are capable of performing these functions in accordance with the plant design and licensing basis, including applicable regulatory requirements.
During operation, licensees are required to monitor and maintain the condition of the SG tubing with the objective of ensuring its continued integrity. Specifically, licensees are required by 10 CFR 50.55a(b)(2)(iii), 10 CFR 50.55a(g), or by the plant technical specifications to perform periodic inservice inspections and to repair (
The current technical specification requirements for inspection and repair of SG tubing were developed in the 1970s and define a prescriptive approach for ensuring tube integrity. This prescriptive approach involves inspecting the tubing at specified intervals, implementing specified tube inspection sampling plans, and repairing or removing from service by plugging all tubes found by inspection to contain flaws in excess of specified flaw repair criteria. However, as evidenced by operating experience, the prescriptive approach defined in the technical specifications may not be sufficient to ensure that tube integrity is maintained. For example, in cases of low to moderate levels of degradation, the technical specifications only require that 3-to 21-percent of the tubes be inspected, irrespective of whether the inspection results indicate that additional tubes need to be inspected to reasonably ensure that tubes with flaws that may exceed the tube repair criteria or which may impair tube integrity are detected. In addition, the technical specifications (and Section XI of the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code) do not explicitly address the inspection methods to be employed for different tube degradation mechanisms at specific tube locations, nor are the specific objectives to be fulfilled by the selected methods explicitly defined. Also, incremental flaw growth between inspections can in many instances exceed what is allowed for in the specified tube repair criteria. In such cases, the specified inspection frequencies may not ensure reinspection of a tube before its integrity is impaired. In short, current technical specification surveillance requirements may not require licensees to actively manage their SG programs so as to provide reasonable assurance that tube integrity is maintained. As a result of the above, licensees have frequently found it necessary to implement measures beyond the technical specification requirements to ensure adequate tube integrity. These measures are frequently accompanied by interaction with the NRC staff in an oversight or review capacity to ensure that adequate tube integrity is being maintained.
The NRC staff, with external stakeholder involvement, embarked on efforts to improve the SG tube integrity regulatory framework as discussed in SECY-03-0800, “Steam Generator Tube Integrity (SGTI)—Plans for Revising the Associated Regulatory Framework.” As a result of these efforts, the NRC and industry generically developed modified technical specifications for addressing steam generator tube integrity. These generically developed technical specifications were recently incorporated into one facility's technical specifications. (Proposals to change the plant-specific technical specifications are reviewed in accordance with the license amendment review process to confirm their acceptability). These modified technical specifications are attached to this generic letter for your information. The approach taken in the modified technical specifications in the Attachment is conceptually similar to the approach outlined in the industry initiative referred to as NEI 97-06, “Steam Generator Program Guidelines.” The modified technical specifications in the Attachment are performance-based in that they are focused on ensuring that the tubing satisfies performance criteria that are commensurate with tube integrity. This approach can be readily adapted to new or unexpected degradation mechanisms and advances in nondestructive examination technology. This approach also includes programmatic elements to ensure that tubes are being adequately monitored and maintained relative to the performance criteria.
The requirements pertaining to the integrity of the SG tubes are contained within Title 10 of the Code of Federal Regulations (10 CFR). Specifically, the general design criteria (GDC)
The requirements pertaining to the content of a plant's technical specifications are given in 10 CFR 50.36, “Technical Specifications.” All currently operating PWR licensees have technical specifications governing the surveillance of the SG tubes. These technical specifications also include operational leakage limits so that if significant leakage develops, the plant is shut down. The plugging limits in the technical specifications were developed to ensure that degraded tubes: (1) Maintain factors of safety against gross rupture consistent with the plant design basis (
As part of the plant licensing basis, applicants for PWR licenses are also required to analyze the consequences of postulated design-basis accidents. Typical accidents analyzed are the SG tube rupture, the locked-rotor, control rod ejection, and a main steamline break. These analyses consider the potential primary-to-secondary leakage through the tubes during these events and must show that the offsite radiological doses do not exceed 10 CFR part 100 limits (or some fraction thereof) and GDC 19 of Appendix A to 10 CFR part 50.
Irrespective of technical specification requirements for SG tube inspection and repair, licensees are also required by 10 CFR part 50, Appendix B Criterion XVI, “Corrective Action,” to ensure that conditions adverse to quality are promptly identified and corrected. In the case of significant conditions adverse to quality, the measures shall assure that the cause of the condition is determined and corrective action taken to preclude repetition.
The staff is requesting information as to: (1) Actions licensees are taking or will take to ensure tube integrity is being maintained, and (2) contemplated changes to the technical specifications to reflect these actions.
As discussed above, the approach in the attached technical specifications is performance-based. There are three performance criteria for the SG tubes: (1) A structural integrity performance criterion, (2) a primary-to-secondary leakage performance criterion for normal operation, and (3) a primary-to-secondary leakage performance criterion for postulated accident conditions.
During public interactions with stakeholders on the structural integrity performance criterion, the staff became aware that the effects of various non-pressure-related loads such as bending loads may not be fully addressed in industry guidance documents for assessing the integrity of degraded SG tubes. Non-pressure-related loads were assessed in the original design of the SG tubes so as to ensure that nondegraded tubes would have adequate integrity for the full range of operating conditions. As a result, this generic letter requests addressees to discuss how they have
Addressees are requested to provide the following information to the NRC within 60 days of the date of this generic letter:
1. A description of the actions they are taking or will take to ensure tube integrity is being maintained and contemplated changes to the technical specifications to reflect these actions.
2. A description of the methodology used to assess the effects of non-pressure-related loads such as bending on SG tube integrity. In addition, addressees should provide a safety assessment demonstrating that the SG tubes will have adequate structural and leakage integrity at the time of their next SG tube inspection, taking into account the effects of non-pressure-related loads.
In accordance with 10 CFR 50.54(f), addressees are required to submit written responses to this generic letter. Two options are available:
(a) Addressees may choose to submit written responses providing the information requested above within the requested time period.
(b) Addressees who cannot meet the requested completion date or who choose an alternate course of action are required to so notify the NRC in writing as soon as possible but no later than 30 days from the date of this generic letter. The response must address any alternative course of action proposed, including the basis for the acceptability of the proposed alternative course of action, and the basis for finding that the SGs remain operable. If the information requested in the previous section of this GL will be subsequently provided, the response must set forth the schedule for submitting the information.
The required written response should be addressed to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, 11555 Rockville Pike, Rockville, Maryland 20852, under oath or affirmation under the provisions of section 182a of the Atomic Energy Act of 1954, as amended, and 10 CFR 50.54(f). In addition, a copy of the response should be sent to the appropriate regional administrator.
This GL requests addressees to submit information. The requested information will enable the NRC staff to determine whether addressees' SG tube integrity programs provide reasonable assurance of tube integrity consistent with their design and licensing basis and applicable regulatory requirements (10 CFR part 50, Appendix A
The NRC staff will review the responses to this GL in order to determine whether additional actions are necessary.
Under the provisions of section 182a of the Atomic Energy Act of 1954, as amended, and 10 CFR 50.54(f), this GL transmits an information request for the purpose of verifying compliance with applicable existing requirements. Specifically, the requested information will enable the NRC staff to determine whether the applicable requirements discussed above are being met. No backfit is either intended or approved in the context of issuance of this GL. Therefore, the staff has not performed a backfit analysis.
To be done after the public comment period.
The NRC has determined that this action is not subject to the Small Business Regulatory Enforcement Fairness Act of 1996.
This GL contains information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The burden of these mandatory information collections on the public is estimated to average 200 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Send comments regarding this burden estimate or any other aspect of these information collections, including suggestions for reducing the burden, to the Records and FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
A SG Program shall be established and implemented to ensure that SG tube integrity is maintained. The SG Program shall include the following provisions:
a. Provisions for condition-monitoring assessments. A condition-monitoring assessment is an evaluation of the “as-found” condition of the tubing with respect to the performance criteria for structural integrity and accident-induced leakage. The “as-found” condition refers to the condition of the tubing during a SG inspection outage, as determined from the inservice inspection results or by other means, prior to the plugging of tubes. Condition-monitoring assessments shall be conducted during each outage during which the SG tubes are inspected or plugged to confirm that the performance criteria are being met.
b. Performance criteria for SG tube integrity. SG tube integrity shall be maintained by meeting the performance criteria for tube structural integrity, accident-induced leakage, and operational LEAKAGE.
1. Structural integrity performance criterion: All inservice SG tubes shall retain structural integrity over the full range of normal operating conditions (including startup, operation in the power range, hot standby, and cooldown and all anticipated transients included in the design specifications) and design-basis accidents. This includes retaining a safety factor of 3.0 against burst under the normal steady state full-power operation primary-to-secondary pressure differential and a safety factor of 1.4 against burst applied to the design-basis accident primary-to-secondary pressure differentials. Apart from the above requirements, additional loading conditions associated with the design-basis accidents, or combination of accidents in accordance with the
2. Accident-induced leakage performance criterion: The primary-to-secondary accident-induced leakage rate for any design-basis accident, other than a SG tube rupture, shall not exceed the rates assumed in the accident analysis for total leakage rate from all SGs and leakage rate from an individual SG. Accident-induced leakage is not to exceed [licensee to insert value] gallons per day through each SG and [licensee to insert value] gallons per day through all SGs.
3. The operational LEAKAGE performance criterion is specified in limiting condition for operation (LCO) [licensee to insert reference to appropriate LCO. For limits currently greater than 150 gallons per day, the LCO limit should be lowered to a value less than or equal to 150 gallons per day.]
c. SG tube repair criteria. Tubes found by inservice inspection to contain flaws with a depth equal to or exceeding 40 percent of the nominal tube wall thickness shall be plugged.
d. Provisions for SG tube inspections. Periodic SG tube inspections shall be performed. The number and portions of the tubes inspected and the method of inspection shall be performed with the objective of detecting flaws of any type (for example, volumetric flaws, axial and circumferential cracks) that may be present along the length of the tube, from the tube-to-tubesheet weld at the tube inlet to the tube-to-tubesheet weld at the tube outlet, and that may satisfy the applicable tube repair criteria. The tube-to-tubesheet weld is not part of the tube. In addition to meeting requirements d.1, d.2, and d.3 below, the inspection scope, inspection methods, and inspection intervals shall be such as to ensure that SG tube integrity is maintained until the next SG inspection. An assessment of degradation shall be performed to determine the type and location of flaws to which the tubes may be susceptible and, based on this assessment, to determine which inspection methods need to be employed and at what locations.
1. Inspect 100 percent of the tubes in each SG during the first refueling outage following SG replacement.
2. Inspect 100 percent of the tubes at sequential periods of [for licensees with thermally treated Alloy 690 tubes, insert “144, 108, 72, and thereafter 60 effective full-power months;” for licensees with thermally treated Alloy 600 tubes, insert “120, 90, and thereafter 60 effective full-power months;” for licensees with mill-annealed Alloy 600 tubes, insert “60 effective full-power months;”]. The first sequential period shall be considered to begin after the first inservice inspection of the SGs. In addition, inspect 50 percent of the tubes by the refueling outage nearest the midpoint of the period and the remaining 50 percent by the refueling outage nearest the end of the period. No SG shall operate for more than [for licensees with thermally treated Alloy 690 tubes, insert “72 effective full-power months or three refueling outages;” for licensees with thermally treated Alloy 600 tubes, insert “48 effective full-power months or two refueling outages;” for licensees with mill-annealed Alloy 600 tubes, insert “24 effective full-power months or each refueling outage” (whichever is less)] without being inspected.
3. If crack indications are found in any SG tube, then the next inspection for each SG for the degradation mechanism that caused the crack indication shall not exceed 24 effective full-power months or one refueling outage (whichever is less). If definitive information, such as from examination of a pulled tube, diagnostic nondestructive testing, or an engineering evaluation indicates that a cracklike indication is not associated with a crack or cracks, then the indication need not be treated as a crack.
e. Provisions for monitoring operational primary-to-secondary leakage.
A report shall be submitted within 180 days of the initial entry into MODE 4 following completion of the inspection. The report shall include:
a. The scope of inspection performed on each SG.
b. Active degradation mechanisms found.
c. Nondestructive examination techniques utilized for each degradation mechanism.
d. Location, orientation (if linear), and measured sizes (if available) of service-induced indications.
e. Number of tubes plugged during the inspection outage for each active degradation mechanism.
f. Total number and percentage of tubes plugged to date.
g. The results of condition monitoring, including the results of tube pulls and in-situ testing.
Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
2 p.m., Thursday, November 4, 2004.
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue, NW., Washington, DC.
Hearing open to the public at 2 p.m.
Public Hearing in conjunction with each meeting of OPIC's Board of Directors, to afford an opportunity for any person to present views regarding the activities of the Corporation.
Individuals wishing to address the hearing orally must provide advance notice to OPIC's Corporate Secretary no later than 5 p.m., Monday, October 25, 2004. The notice must include the individual's name, title, organization, address, and telephone number, and a concise summary of the subject matter to be presented.
Oral presentations may not exceed ten (10) minutes. The time for individual presentations may be reduced proportionately, if necessary, to afford all participants who have submitted a
Participants wishing to submit a written statement for the record must submit a copy of such statement to OPIC's Corporate Secretary no later than 5 p.m., Monday, October 25, 2004. Such statements must be typewritten, double-spaced, and may not exceed twenty-five (25) pages.
Upon receipts of the required notice, OPIC will prepare an agenda for the hearing identifying speakers, setting forth the subject on which each participant will speak, and the time allotted for each presentation. The agenda will be available at the hearing.
A written summary of the hearing will be compiled, and such summary will be made available, upon written request to OPIC's Corporate Secretary, at the cost of reproduction.
Information on the hearing may be obtained from Connie M. Downs at (202) 336-8438, via facsimile at (202) 218-0136, or via e-mail at
The Presidio Trust.
Extension of comment period.
The Presidio Trust is extending the comment period from October 12, 2004 to November 12, 2004 to enhance opportunities for public and agency participation in the National Environmental Policy Act process for the Public Health Service Hospital (PHSH) Draft Supplemental Environmental Impact Statement (Draft SEIS).
Oral comments may be made at the public meeting of the Presidio Trust Board of Directors commencing 6:30 p.m. on November 4, 2004, at the Officers' Club, 50 Moraga Avenue, Presidio of San Francisco, California. Written comments may be sent to the Presidio Trust via fax ((415) 561-2790), e-mail (
For more information regarding this and other planning efforts in the Presidio, visit
The Presidio Trust.
Notice of public meeting.
In accordance with § (c)(6) of the Presidio Trust Act, 16 U.S.C. 460bb note, Title I of Pub. L. 104-333, 110 Stat. 4097, as amended, and in accordance with the Presidio Trust's bylaws, notice is hereby given that a public meeting of the Presidio Trust Board of Directors will be held commencing 6:30 p.m. on Thursday, November 4, 2004, at the Officers' Club, 50 Moraga Avenue, Presidio of San Francisco, California. The Presidio Trust was created by Congress in 1996 to manage approximately eighty percent of the former U.S. Army base known as the Presidio, in San Francisco, California.
The purposes of this meeting are to provide the Executive Director's report and to receive public comment regarding the Draft Supplemental Environmental Impact Statement for the Public Health Service Hospital project.
Karen Cook, General Counsel, the Presidio Trust, 34 Graham Street, PO Box 29052, San Francisco, California 94129-0052, Telephone: (415) 561-5300.
On February 20, 2004, the Chicago Stock Exchange, Inc. (“CHX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to implement a new automated functionality built into the Exchange's MAX® system called CHXpress for certain orders.
CHXpress orders could be routed into the MAX system by the Exchange's order-sending firms or by CHX floor brokers. All orders would be required to be specifically designated as CHXpress orders to ensure appropriate handling in the Exchange's automated systems.
If a CHXpress order could not be immediately executed, it would be placed in the specialist's book for instantaneous display or later execution.
Finally, under the proposed rules, CHXpress orders would be primarily designed to match against orders in the specialist's book.
After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
As noted by the Exchange, CHXpress orders will automatically and immediately execute against orders in the specialist's book or against the specialist unless the execution would cause a trade through of another ITS market or trading has been halted in the particular security. The Commission believes that this new automatic execution system should provide investors with an efficient mechanism by which to immediately interact with the Exchange's quote and allow investors to immediately access liquidity on the Exchange.
Moreover, the Commission believes that the proposal, as amended, will provide investors with additional order routing capabilities that may enhance the execution of their orders. The proposal provides a new execution facility in addition to the current execution facilities on the CHX. Investors will be able to choose a more immediate execution that will not provide them with price improvement opportunities on CHXpress or choose to direct their order to the current CHX BEST or MAX system for price improvement opportunities. The Commission finds that allowing the automatic execution of CHXpress orders against orders in the specialist's book will help to perfect the mechanism of a free and open market by providing an execution vehicle for investors who value immediate and automatic access to available liquidity at the Exchange more than the opportunity for price improvement.
Furthermore, the Commission believes that the Exchange's proposal to automatically cancel and not accept any CHXpress orders in an issue during a trading halt, and cancel both inbound
Section 11(a) of the Act
In a letter dated July 6, 2004,
First, according to the CHX, all CHXpress orders would be electronically submitted either by members from locations off the exchange floor or by floor brokers located on the Exchange floor for the accounts of off-floor members. Specifically, floor brokers may receive an order, by telephone, from an off-floor member not affiliated with the floor broker. Thereafter, the floor broker may decide that it would be best to execute all or a portion of the off-floor member's order in CHXpress. Accordingly, because the off-floor member submitted its order to an unaffiliated floor broker on the floor from off the Exchange floor, the Commission believes that it has satisfied the off-floor transmission requirement. Second, because a member would relinquish control of its order after it is submitted to CHXpress and would not be able to influence or guide the execution of its order, the member would not be participating in the execution of its order. Third, although the rule contemplates having an order executed by an exchange member who is not affiliated with the member initiating the order, the Commission recognizes that this requirement is satisfied when automated exchange facilities are used.
The Commission finds good cause to approve Amendments No. 2 and 3 to the proposed rule change prior to the thirtieth day after the amendments are published for comment in the
Interested persons are invited to submit written data, views, and arguments concerning Amendments No. 2 and 3, including whether Amendments No. 2 and 3 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,
All submissions should refer to File Number SR-CHX-2004-12. 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 foregoing reasons, the Commission finds that the proposed rule change, as amended, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange, and, in particular, with Section 6(b)(5) of the Act.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On February 3, 2003, the National Association of Securities Dealers, Inc. (“NASD”) filed with the Securities and Exchange Commission (“Commission” or “SEC”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission received seven comment letters on the NASD's proposed rule change as modified by Amendment No. 1.
•
Several commenters suggested that the NASD revise its definition of investment analysis tools.
One commenter further suggested that the NASD's proposed definition of investment analysis tools should be revised so that it fully reflects the purpose of the IM and explains “which tools are not covered by the IM's prescriptive text and therefore are already permissible under existing [NASD] Rule 2210(d). * * *”
One commenter suggested that investment analysis tools provided exclusively to institutional investors should be excluded from the scope of the proposed IM's prohibition,
•
Several commenters suggested that the NASD further explain its intent with regard to the requirement that investment analysis tools use a mathematical process that can be audited and reviewed.
•
Some commenters suggested that the NASD modify its disclosure requirements to eliminate unnecessary and duplicative disclosure. For example, several commenters opposed the requirement of a disclosure statement explaining that there are other investments that were not considered by the investment analysis tool that may have characteristics similar or superior to those analyzed by the tool.
•
The NASD's proposed disclosure requirements apply not only to investment analysis tools, but also to written reports indicating the results generated by the use of investment analysis tools, and any related sales material. Commenters had varying concerns about this aspect of the proposal. For example, one commenter advocated an alternative approach in which the NASD would grant member firms the discretion to determine the best approach regarding disclosure between investment analysis tools and the reports generated by use of the tools, rather than requiring that all written reports contain the same disclosure, which would be redundant and unhelpful.
One commenter argued against the NASD's proposal to apply the disclosure requirements broadly to all investment analysis tool-related sales material, and recommended that the disclosure requirements apply only to “sales material that contains either a detailed description of the tool or investor-specific probability presentations.”
One commenter suggested that the NASD allow members to have discretion over where to place the required clear and prominent disclosures “as part of the tool's interactive process and/or on any report that provides the tool's result.”
•
Most of the commenters opposed the NASD's proposed requirement that member firms provide the NASD with access to a proposed investment analysis tool at least 30 days prior to its first use, and the required filing of any templates for written reports produced by, or sales material concerning, the tool.
One commenter recommended reducing the 30-day period to a 10-day period.
•
A few commenters expressed concern that the NASD's proposed IM does not resolve ambiguity regarding which regulatory scheme applies to the use of investment analysis tools.
Similarly, one commenter recommended that the NASD explain in more detail the difference between a permissible “forecast” and a prohibited “projection or prediction” and suggested that the IM is inconsistent
•
Two commenters requested the NASD to clarify whether a broker-dealer that also is registered as an investment adviser would be subject to the provisions of the IM when offering public customers an investment analysis tool in its capacity as an investment adviser.
•
Some commenters objected to what they believe is a potential burden on competition that could result from the proposed IM, in particular the pre-filing and approval process.
One commenter stated that member firms linking customers to an investment adviser, bank, or other affiliated or non-affiliated third party offering an investment analysis tool may or may not be subject to the rule, the uncertainty of which the commenter believes creates competitive disadvantages for certain classes of member firms depending on their organizational structure and relationships with third parties.
The NASD filed Amendment No. 2 on December 3, 2003, which responded to the comments and elaborated on the NASD's rationale for the proposed IM. Amendment No. 2 modified the NASD's proposal to accommodate many of the commenters' concerns.
One of the NASD's modifications to the proposed rule was a further delineation of the types of communications generally prohibited by the proposed IM. In Amendment No. 2, the NASD modified the proposed IM to make it consistent with the recently amended language of NASD Rule 2210(d)(1)(D), formerly NASD Rule 2210(d)(2)(N), by clarifying that the proposed rule change “prohibits predictions and projections involving the likely performance of both specific securities
In response to commenters' concerns with the pre-filing requirement, the NASD modified the proposed IM to eliminate the 30-day pre-filing requirement and instead require members to file their investment analysis tools with the NASD Advertising Regulation Department within 10 days after first use. The NASD recognized commenters' concerns with respect to the NASD interfering in the development of investment analysis tools and acknowledged that the pre-filing requirement is unnecessary in light of the fact that the NASD staff will not be conducting a merit review of the tools.
The NASD also responded to commenters' concerns regarding the permissibility of calculating a single probability score by amending the proposed IM to eliminate the requirement that investment analysis tools present a range of probabilities, including upside, downside, and median projections.
Similarly, the NASD eliminated the requirement that investment analysis tools use a mathematical process that can be audited and reviewed. The NASD recognized the difficulty inherent in requiring NASD examiners to review the mathematical processes of investment analysis tools for compliance with the proposed IM. Further, the NASD eliminated the requirement in order to avoid any perception that may have led the investing public to believe that the NASD would be performing a merit-based review of these investment analysis tools.
The NASD also responded to a suggestion that the NASD standard be harmonized with New York Stock Exchange Rule 472 that permits forecasts that are clearly labeled as such and are not exaggerated or unwarranted.
With regard to commenters who stated their belief that investment analysis tools are already permitted by the exception to NASD Rule 2210(d)(2)(N) permitting hypothetical illustrations of mathematical principles, the NASD explained that amended NASD Rule 2210(d)(1)(D), formerly NASD Rule 2210(d)(2)(N), operates generally to prohibit investment analysis tools, as they make predictions and projections which are prohibited by the rule.
The Commission has reviewed carefully the proposed rule change, the comment letters, and the NASD's response to the comments, and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association
In particular, the Commission notes that, in response to commenters' concerns, the NASD modified the proposed IM to eliminate the 30-day pre-filing requirement in favor of a 10-day post-use access and filing requirement. Additionally, the filing requirement is waived for investment analysis tools provided exclusively to institutional investors, though the Commission notes that such tools would still be subject to the disclosure requirements of the proposed IM. The Commission believes this modification of the proposed IM addresses the commenters' concerns and that the amended provision is reasonable. Since the NASD will not be performing substantive merit reviews of these tools, however, the Commission reminds NASD member firms of the need to take great care in providing complete and understandable disclosure to minimize the potential for any investment analysis tool literature or output to be presented in a misleading manner.
With respect to the disclosure regarding the universe of investments considered by investment analysis tools, the Commission agrees that the NASD's approach is reasonably tailored to provide meaningful disclosure regarding the securities considered by the tools and the limitations inherent in the scope of any analysis provided. Regarding commenters' concerns about the requirement that investment analysis tools use a mathematical process that can be audited, the Commission notes that the NASD has dropped this provision from the proposed IM. The Commission believes that this modification to the proposed IM is reasonable. While the Commission acknowledges that the NASD's modification was intended, in part, to alleviate the commenters' concerns that the NASD intended for members to collect and maintain an archive of calculations performed by the tools, or to perhaps require third-party audits of the tools, the Commission reminds NASD members that any investment analysis tools purporting to employ mathematical principles while accounting for certain variables and assumptions should, by their nature, be capable of being audited with respect to the processes employed and functions performed by the tools.
Similarly, the Commission notes that the NASD has amended the proposed IM to remove the requirement that investment analysis tools present a range of probabilities, thereby allowing tools to present a single probability of achieving a desired result. While the Commission believes this modification is reasonable, the Commission reminds broker-dealers of the importance of meaningful and readily-understandable disclosure for any investment analysis tools that present the likelihood of achieving a single result in such a way that guards against the potential for misleading the investing public.
In response to one commenter's concerns regarding broker-dealers dually registered as investment advisers, the Commission notes that the proposed IM applies only to NASD members. Further, with respect to the obligations of a broker-dealer for hyperlinked information, the Commission reminds NASD members of the Commission's guidance regarding the applicable theories of liability for hyperlinked information.
The Commission does not believe that the proposed IM will place any undue burden on competition. The Commission notes the elimination of the pre-use filing requirement from the proposed IM and, though financial advisers and other entities may not be subject to the IM since the NASD's jurisdiction only extends to its member broker-dealers, the Commission feels that the amended IM is narrowly tailored to prevent fraudulent practices and protect the investing public without unduly restricting or burdening the competitive market for these types of products with respect to NASD members.
With regard to all other issues raised by the commenters, the Commission is satisfied that the NASD has adequately addressed the commenters' concerns.
The Commission expects that the NASD will carefully monitor compliance with the provisions of the IM among its member broker-dealers offering investment analysis tools and, in particular, will review the required disclosures, including the nature of the tools' output, with an eye towards preventing misleading and fraudulent statements and protecting the investing public.
The Commission finds good cause for approving Amendment Nos. 2 and 3 before the thirtieth day after the date of publication of notice of filing thereof in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment Nos. 2 and 3 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 rule-comments@sec.gov. Please include File Number SR-NASD-2003-13 on the subject line.
• 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 No. SR-NASD-2003-13. 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.
This Interpretive Material provides a limited exception to NASD Rule 2210(d)(1)(D).
Rule 2210(d)(1)(D) does not prohibit, and this Interpretive Material does not apply to, hypothetical illustrations of mathematical principles that do not predict or project the performance of an investment or investment strategy.
A member that offers an investment analysis tool exclusively to “institutional investors,” as defined in Rule 2211(a)(3), is not subject to the post-use access and filing requirement in this paragraph if the communications relating to or produced by the tool meet the criteria for “institutional sales material,” as defined in Rule 2211(a)(2). A member that intends to make the tool available to, or that intends to use the tool with, any person other than an institutional investor (such as an employee benefit plan participant or a retail broker-dealer customer) will be subject to the filing and access requirements, however.
As in all cases, a member's compliance with this Interpretive Material does not mean that the member is acting in conformity with other applicable laws and rules. A member that offers an investment analysis tool under this Interpretive Material (whether customers use the member's tool independently or with assistance from the member) is responsible for ensuring that use of the investment analysis tool and all recommendations based on the investment analysis tool (whether made via the automated tool or a written report) comply, as applicable, with NASD's suitability rule (Rule 2310), the other provisions of Rule 2210 (including, but not limited to, the principles of fair dealing and good faith, the prohibition on exaggerated, unwarranted or misleading statements or claims, and any other applicable filing requirements for advertisements and sales literature), the federal securities laws (including, but not limited to, the antifraud provisions), the Securities and Exchange Commission rules (including, but not limited to, SEC Rule 156 under the Securities Act of 1933) and other NASD rules.
For purposes of this Interpretive Material and any interpretation thereof, an “investment analysis tool” is an interactive technological tool that produces simulations and statistical analyses that present the likelihood of various investment outcomes if certain investments are made or certain investment strategies or styles are undertaken, thereby serving as an additional resource to investors in the evaluation of the potential risks and returns of investment choices.
A member may provide an investment analysis tool (whether customers use the member's tool independently or with assistance from the member), written reports indicating the results generated by such tool and related sales material
(1) The member describes the criteria and methodology used, including the investment analysis tool's limitations and key assumptions;
(2) the member explains that results may vary with each use and over time;
(3) if applicable, the member describes the universe of investments considered in the analysis, explains how the tool determines which securities to select, discloses if the tool favors certain securities and, if so, explains the reason for the selectivity,
(4) the member displays the following additional disclosure: “IMPORTANT: The projections or other information generated by [name of investment analysis tool] regarding the likelihood of various investment outcomes are hypothetical in nature, do not reflect actual investment results and are not guarantees of future results.”
The disclosures and other required information discussed in paragraph (c) must be clear and prominent and must be in written or electronic narrative form.
On November 20, 2003, the Pacific Exchange, Inc. (“PCX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Current PCX Rule 6.47(b), concerning the crossing of facilitation orders, permits a Floor Broker who holds an order for a customer and an order for the proprietary account of an OTP (Options Trading Permit) Holder or OTP Firm
The proposed rule change would amend Rule 6.47(b), to be newly entitled “Facilitation Procedure,” in several ways. Whereas the current rule defines a “customer order” subject to facilitation to include orders of broker-dealers, under the proposal, the facilitation procedure would apply only to orders of public customers.
Further, the proposal would (a) increase to 40% the guaranteed percentage of a Customer Order that a Floor Broker is entitled to cross at the quoted market, and (b) obligate the Floor Broker to fill any portion of the customer order that remains unexecuted after the Floor Broker has provided the trading crowd an opportunity to execute the remainder of the order. Specifically, after first satisfying any orders for the account of persons who are not OTP Holders or OTP Firms pending at the Facilitation Price, the Floor Broker would be permitted to facilitate up to 40% of the remaining contracts in the Customer Order against the Facilitation Order at the Facilitation Price. The Floor Broker would be required to allow any other member of the trading crowd interested in trading at the Facilitation Price to execute the remaining 60% or more of the Customer Order.
The remaining 60% would be allocated among the members interested in trading at the Facilitation Price on a size pro-rata basis or, in the case of identical offers or bids (where the Floor Broker's offer or bid improved the crowd's price in response to the request for a market), on an equal basis. If any portion of the Customer Order remains after providing the crowd reasonable time to execute the remaining 60%, the Floor Broker would be required to fill the remainder of the Customer Order by executing it against the Facilitation Order at the Facilitation Price.
The Exchange also proposes to add new PCX Rule 6.47(b)(5), which states that if the trading crowd does not provide a bid and offer for all components of the Customer Order in response to the Floor Broker's request within a reasonable period of time, the “market quote” for the purpose of this rule will be either (i) the quoted market disseminated by the Exchange prior to the commencement of the Facilitation Procedure, or (ii) for orders for which there is no disseminated market, a quote that is determined by the disseminated quote for each leg of the transaction prior to the commencement of the Facilitation Procedure. As clarified in Amendment No. 3, the 60% of the Customer Order remaining after the Floor Broker executes the 40% guarantee in such a situation would be allocated on an equal basis among any members of the crowd interested in trading at the Facilitation Price.
The proposal would renumber former PCX Rule 6.47(b)(5) as PCX Rule 6.47(b)(6) and amend it to provide that if the facilitation trade occurs at the LMM's quoted bid or offer in its allocated issue and the Floor Broker takes less than 40% of the trade, then the LMM may elect either (i) to accept a guaranteed participation level of 40% minus the Floor Broker's allocation percentage, or (ii) to participate in the pro-rata allocation without a guaranteed participation level. If the trade occurs at a price other than the LMM's quoted bid or offer, the LMM would not be entitled to a guaranteed participation. A Floor Broker or LMM would not be prohibited from trading more than their guaranteed participation levels if the members of the trading crowd do not choose to trade the remaining portion of the order.
The proposed rule change would revise Commentary .06 to PCX Rule 6.47 to provide that it will be a violation of a Floor Broker's duty to use due diligence in representing its Customer Order if the Floor Broker does not employ the Facilitation Procedure on the PCX immediately upon receipt on the PCX of the order that the OTP Holder or OTP Firm wishes to have executed as a facilitation cross. The Exchange also proposes to add Commentary .07, which provides that it will be a violation of an OTP Holder's or OTP Firm's duty of best execution to its customer if it cancels a facilitation order for the purpose of avoiding execution of the order at a better price.
Finally, the proposed rule change would clarify facilitation crossing procedures for orders of less than 50 contracts, which are not subject to the guarantees set forth in the rule. The proposal would establish that, when facilitating such orders, the Floor Broker must satisfy all orders in the book and all orders represented in the trading crowd (affording the trading crowd a reasonable period of time to respond to the Customer Order) before the Floor Broker may cross the Customer Order.
After careful consideration, the Commission has determined to approve the proposed rule change, as amended.
The proposed rule change sets forth a number of amendments to the procedures for the execution of facilitation crossing transactions on the Exchange, and would also increase the
The Commission further notes that the proposed rule change also would require a Floor Broker to fill the remainder of the Customer Order that is not filled by the trading crowd by executing it against the Facilitation Order, thus ensuring that the Customer Order will be executed at or between quoted markets.
The Commission finds good cause for approving Amendments No. 3 and 5 to the proposed rule change prior to the thirtieth day after the amendment is published in the
Interested persons are invited to submit written data, views, and arguments concerning Amendment No. 3, including whether it 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-PCX-2003-64. 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.
Small Business Administration.
Notice of termination of waiver of the Nonmanufacturer Rule for Paint and Paint Manufacturing.
The U. S. Small Business Administration (SBA) is terminating the waiver of the Nonmanufacturer Rule for Paint and Paint Manufacturing based on our recent discovery of a small business manufacturer for this class of products. Terminating this waiver will require recipients of contracts set aside for small or 8(a) businesses to provide the products of small business manufacturers or process on such contracts.
This termination of waiver is effective on October 22, 2004.
Edith Butler, Program Analyst, by telephone at (202) 619-0422; by Fax at (202) 205-7280; or by e-mail at
Section 8(a)(17) of the Small Business Act, (Act)15 U.S.C. 637(a)(17), requires that recipients of Federal contracts set aside for small businesses or SBA's 8(a) Business Development Program provide the product of a small business manufacturer or processor, if the recipient is other than the actual manufacturer or processor of the product. This requirement is commonly referred to as the Nonmanufacturer Rule.
The SBA regulations imposing this requirement are found at 13 CFR 121.406 (b). Section 8(a)(17)(b)(iv) of the Act authorizes SBA to waive the Nonmanufacturer Rule for any “class of products” for which there are no small business manufacturers or processors available to participate in the Federal market.
As implemented in SBA's regulations at 13 CFR 121.1204, in order to be considered available to participate in the Federal market for a class of products, a small business manufacturer must have submitted a proposal for a contract solicitation or received a contract from the Federal government within the last 24 months. The SBA defines “class of products” based on six digit coding systems. The first coding system is the Office of Management and Budget North American Industry Classification System (NAICS). The second is the Product and Service Code established by the Federal Procurement Data System.
The SBA received a request on June 29, 2004 to waive the Nonmanufacturer Rule for Paint and Paint Manufacturing. In response, on July 28, 2004, SBA published in the
15 U.S.C. 637(a)(17).
Overseas educational advisers provide accurate and objective information to foreign audiences on U.S. study opportunities at accredited academic institutions and guide students and professionals in selecting a program appropriate to their needs.
Regional Educational Advising Coordinators (REAC) provide training and needs assessment and serve as the chief resource to centers in their regions on advising and other educational issues.
Project proposals should be structured to focus on the following:
1. Short-term training for mid- and senior-level advisers.
2. Logistical support services for Regional Educational Advising Coordinators and educational advisers attending the national NAFSA: Association of International Educators conference in Seattle in May 2005.
The Department anticipates awarding one grant to administer this program.
The training component of the proposal should include a U.S.-Based Training program (USBT) for mid-level advisers and Professional Advising Leadership (PAL) fellowships for senior-level advisers.
The USBT for mid-level educational advisers should be approximately three weeks in duration in Fall 2005 and must include workshops on advising issues of concern, visits to a variety of U.S. academic institutions outside of the Washington, DC metropolitan area and attendance at a regional NAFSA: Association of International Educators conference or similar professional development opportunity.
Professional Advising Leadership (PAL) projects for senior-level advisers may take place three times throughout 2005 and include four advisers in each group. Advisers applying for a PAL fellowship will have at least four years of advising experience. Applicants will formulate a proposal outlining a project that will be of benefit to the adviser's center, region and the profession as a whole.
The Support Services portion of the program will include providing logistical support for the following activities in May/June 2005:
Support will include making arrangements for lodging and other activities for up to eight REACs and Educational Information and Resources Branch (ECA/A/S/A) program staff for five days of consultations in Washington, DC before the 2005 NAFSA Conference to be held May 29-June 3, 2005 in Seattle, Washington,
Support will include making arrangements for meetings with REACs, PAL Fellows and Branch program officers after the NAFSA conference in Seattle.
Support will include (a) making hotel reservations for advisers not participating in the USBT and PAL programs and (b) providing grants to advisers for conference attendance and to the ECA/A/S/A-designated campus liaison coordinator for administration of pre-conference campus visits.
Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States
For the purposes of this RFGP, eligible advisers are defined as those who are currently working at a State Department-affiliated advising center and who have demonstrated the skills associated with the four major components of overseas educational advising: (1) Knowledge of the U.S. and home country educational systems; (2) knowledge of the application process for individuals to enroll in U.S. higher educational institutions; (3) demonstrated educational advising and cross-cultural communication skills; and (4) demonstrated office management skills as they relate to an overseas advising center. In addition, each participant must demonstrate leadership and a commitment to the profession.
Approximately twenty participants are expected for one USBT program and twelve (three groups of four) for the PAL program. Participants will be selected by ECA/A/S/A based on nominations from overseas posts.
The Bureau invites organizations to submit creative and flexible program plans which can be tailored, in close consultation with ECA/A/S/A, to the selected advisers' individual needs. The proposal should include an overall project framework which identifies objectives, an implementation plan and measurable, expected outcomes.
Possible topics to incorporate for the USBT portion of the program include: Degree equivalency and accreditation; international student admissions; financial aid; standardized testing; ESL programs; immigration and visa issues; fields of study; cultural adjustment; U.S. societal diversity; specialized Internet usage; distance learning; proposal writing; fundraising; public relations and marketing; determining appropriate fees for advising services for students and others, given each host country's environment; trends in advising center cost-sharing and training and management of volunteer staff.
For the PAL component, advisers, in consultation with ECA/A/S/A and the grantee organization, will develop a research or training project to be carried out in the United States that will have a formative impact on advising in their countries and regions. For 2005, PAL projects may include the following topics: Admission with financial aid; business planning and income-generating activities; outreach programming; marketing and publicity for advising centers.
The USBT and PAL components should provide for the possibility of attendance at, and active participation in, an appropriate NAFSA or other conference where workshops and seminars address issues of current interest to international educators and overseas advisers and where the opportunity to brainstorm and to share information plays an important part. Advisers should have opportunities to present and/or participate in panels and pre-conference/conference workshops. In addition, the USBT portion of the program should include internship experiences and visits to a four-year public university, a private college or university, a community college, an Historically Black College or University (HBCU) or other minority-serving institution, and a graduate or research institution. Ideally, USBT participants should visit campuses while classes are in session to optimize their experience through interaction with students.
The grantee organization will be responsible for all arrangements associated with this program. For the USBT and PAL components, these include organizing a coherent progression of activities, providing international and domestic travel arrangements for all advisers, making lodging and local transportation arrangements, orienting and debriefing advisers, preparing support material, and recruiting host campuses. The organization should work with host campuses and experts in the field of higher education and overseas advising to achieve maximum program effectiveness, by providing participants with hands-on training and direct involvement in the administration of practices and policies of higher education institutions.
The proposal must include a detailed evaluation and follow-up plan. Special emphasis should be given to designing a program which incorporates outcome measurement strategies that assess ultimate effectiveness. Refer to Section IV.3d of this document for additional information on evaluation.
The program must comply with applicable visa regulations. Participants should come on B1/B2 tourist visas. Participant health and accident insurance will be provided to the overseas advisers by the Bureau; the recipient organization will be responsible for enrolling participants in the Bureau's insurance program and providing any necessary assistance should medical care be needed. Administration of the program must be in compliance with reporting and withholding regulations for federal, state, and local taxes as applicable. Recipient organizations should demonstrate tax regulation adherence in the proposal narrative and budget.
Drafts of all printed materials developed for this program should be submitted to ECA/A/S/A for review and approval. All official documents should highlight the U.S. government's role as program sponsor and funding source. The Bureau requires that it receive the copyright use and be allowed to distribute this material as it sees fit.
Pending successful implementation of this program and the availability of funds in subsequent fiscal years, it is ECA's intent to renew this grant for two additional fiscal years, before openly competing it again.
• Selection of program participants in coordination with Public Affairs Sections at U.S. embassies and consulates overseas, with input from the ECA Grants Office
• Participation and speaking at program sessions to include opening and closing activities
• Organizing meetings with Department of State offices
• Review and approval of program plans and agendas
Applications may be submitted by public and private non-profit organizations meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3).
There is no minimum or maximum percentage required for this competition. However, the Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs.
When cost sharing is offered, it is understood and agreed that the applicant must provide the amount of cost sharing as stipulated in its proposal and later included in an approved grant agreement. Cost sharing may be in the form of allowable direct or indirect costs. For accountability, you must maintain written records to support all costs which are claimed as your contribution, as well as costs to be paid by the Federal government. Such records are subject to audit. The basis for determining the value of cash and in-kind contributions must be in accordance with OMB Circular A-110, (Revised), Subpart C.23—Cost Sharing and Matching. In the event you do not provide the minimum amount of cost sharing as stipulated in the approved budget, ECA's contribution will be reduced in like proportion.
a. Bureau grant guidelines require that organizations with less than four years' experience in conducting international exchanges be limited to $60,000 in Bureau funding. ECA anticipates awarding one grant, in an amount not to exceed $575,000 to support program and administrative costs required to implement this exchange program. Therefore, organizations with less than four years' experience in conducting international exchanges are ineligible to apply under this competition.
Please read the complete
Please contact the ECA/A/S/A, Room 349, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, telephone: 202-260-6936, fax: 202-401-1433, e-mail:
The Solicitation Package contains the Proposal Submission Instruction (PSI) document which consists of required application forms and standard guidelines for proposal preparation.
It also contains the Project Objectives, Goals and Implementation (POGI) document, which provides specific information, award criteria and budget instructions tailored to this competition.
The entire Solicitation Package may be downloaded from the Bureau's Web site at
Applicants must follow all instructions in the Solicitation Package. The original and eight copies of the application should be sent per the instructions under IV.3e., “Submission Dates and Times” section below.
IV.3a. You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the U.S. Government. This number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
IV.3b. All proposals must contain an executive summary, proposal narrative and budget.
IV.3c. You must have nonprofit status with the IRS at the time of application. If your organization is a private nonprofit which has not received a grant or cooperative agreement from ECA in the past three years, or if your organization received nonprofit status from the IRS within the past four years, you must submit the necessary documentation to verify nonprofit status as directed in the PSI document. Failure to do so will cause your proposal to be declared technically ineligible.
IV.3d. Please take into consideration the following information when preparing your proposal narrative:
IV.3d.1 Diversity, Freedom and Democracy Guidelines. Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the “Support for Diversity” section for specific suggestions on incorporating diversity into your proposal. Public Law 104-319 provides that “in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,” the Bureau “shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.” Public Law 106-113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible.
IV.3d.2 Program Monitoring and Evaluation. Proposals must include a plan to monitor and evaluate the project's success, both as the activities unfold and at the end of the program. The Bureau recommends that your proposal include a draft survey questionnaire or other technique plus a description of a methodology to use to
Successful monitoring and evaluation depend heavily on setting clear goals and outcomes at the outset of a program. Your evaluation plan should include a description of your project's objectives, your anticipated project outcomes, and how and when you intend to measure these outcomes (performance indicators). The more that outcomes are “smart” (specific, measurable, attainable, results-oriented, and placed in a reasonable timeframe), the easier it will be to conduct the evaluation. You should also show how your project objectives link to the goals of the program described in this RFGP.
Your monitoring and evaluation plan should clearly distinguish between program
We encourage you to assess the following four levels of outcomes, as they relate to the program goals set out in the RFGP (listed here in increasing order of importance):
1.
2.
3.
4.
Consideration should be given to the appropriate timing of data collection for each level of outcome. For example, satisfaction is usually captured as a short-term outcome, whereas behavior and institutional changes are normally considered longer-term outcomes.
Overall, the quality of your monitoring and evaluation plan will be judged on how well it (1) specifies intended outcomes; (2) gives clear descriptions of how each outcome will be measured; (3) identifies when particular outcomes will be measured; and (4) provides a clear description of the data collection strategies for each outcome (
Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
IV.3.e. Please take the following information into consideration when preparing your budget:
IV.3e.1. Applicants must submit a comprehensive budget for the entire program. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification. Applicants must submit two budgets: One for not more than $475,000 to support initial program and administrative costs required to implement this program, and a second for not more than $575,000, for additional adviser training and support activities, should additional funding become available.
IV.3e.2. Allowable costs for the program include the following:
(1) Salaries and fringe benefits; travel and per diem;
(2) Other direct costs, inclusive of rent, utilities, etc.;
(3) Indirect expenses (except against participant program expenses), auditing costs;
(4) Participant program costs;
(5) Alumni Web site and alumni support activities
(6) Advising coordinator expenses for pre-conference campus visits
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
IV.3f. Submission Dates and Times:
Applicants must follow all instructions in the Solicitation Package.
When preparing your submission, please make sure to include one extra copy of the completed SF-424 form and place it in an envelope addressed to “ECA/EX/PM”.
The original and eight copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/S/A/-05-05, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Along with the Project Title, all applicants must enter the above Reference Number in Box 11 on the SF-424 contained in the mandatory Proposal Submission Instructions (PSI) of the solicitation document.
IV.3g. Intergovernmental Review of Applications: Executive Order 12372 does not apply to this program.
The Bureau will review all proposals for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Diplomacy section overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards cooperative agreements resides with the Bureau's Grants Officer.
Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures. Successful applicants will receive an Assistance Award Document (AAD) from the Bureau's Grants Office. The AAD and the original grant proposal with subsequent modifications (if applicable) shall be the only binding authorizing document between the recipient and the U.S. Government. The AAD will be signed by an authorized Grants Officer, and mailed to the recipient's responsible officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review from the ECA program office coordinating this competition.
Terms and Conditions for the Administration of ECA agreements include the following:
Please reference the following websites for additional information:
You must provide ECA with a hard copy original plus one copy of the following reports:
1. A final program and financial report no more than 90 days after the expiration of the award;
Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. (Please refer to IV. Application and Submission Instructions (IV.3.d.3) above for Program Monitoring and Evaluation information.
All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
All reports must be sent to the ECA Grants Officer and ECA Program Officer listed in the final assistance award document.
Organizations awarded grants will be required to maintain specific data on program participants and activities in an electronically accessible database format that can be shared with the Bureau as required. As a minimum, the data must include the following:
(1) Name, address, contact information and biographic sketch of all
(2) Itineraries of international and domestic travel, providing dates of travel and cities in which any exchange experiences take place. Final schedules for in-country and U.S. activities must be received by the ECA Program Officer at least three work days prior to the official opening of the activity.
For questions about this announcement, contact: Dorothy Mora, Educational Information and Resources Branch, ECA/A/S/A, Room 349, Reference number ECA/A/S/A-05-05, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, telephone: 202-260-6936 and fax number: 202-401-1433, Internet address:
All correspondence with the Bureau concerning this RFGP should reference the above title and number ECA/A/S/A-05-05 Please read the complete
The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements per section VI.3 above.
The REAC provides training and information to new and experienced advisers, conducts needs assessments, site visits, manages the regional advising listserv, and oversees production of the regional newsletter.
Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” The funding authority for the program above is provided through legislation.
The REAC coordinates a network of educational advising centers throughout the region. Advising centers first opened in Eurasia in 1992, and the network has expanded each year. These centers provide accurate and unbiased information and advising about higher education in the U.S. and U.S. Government-sponsored exchange programs to all interested students and scholars. The REAC's mission is to continue to develop and strengthen this network of educational information and advising centers and to provide leadership and expertise on educational advising issues to centers and Public Affairs Sections. The REAC is responsible for providing onsite technical assistance and training to all centers in the U.S. Department of State-affiliated network. The REAC lends support to any affiliated center in the twelve countries comprising the Eurasia region and works impartially with all organizations involved in educational advising to help enable centers to provide accurate and timely information on U.S. higher educational opportunities. The REAC also works closely with the Bureau and Public Affairs Sections to help establish
In a cooperative agreement, ECA/A/S/A is substantially involved in program activities above and beyond routine grant monitoring. ECA/A/S/A activities and responsibilities for this program are as follows: all Eurasia centers must facilitate international exchange through overseas educational advising, orientation, and information services for foreign students and scholars seeking information on opportunities in U.S. higher education. ECA/A/S/A will provide reference materials, training opportunities, and occasional equipment (on a priority needs basis) to all educational advising centers in the State Department-affiliated EducationUSA advising network. All centers in the network, including those centers receiving grants from ECA/A/S/A, must operate according to the following basic principles:
(a) Advising centers should provide impartial information about all accredited institutions of higher learning in the United States;
(b) Services provided at no charge should include, at minimum, access to educational reference materials as appropriate and to an introductory group advising session;
(c) Advising centers must be open to the public and must serve the diversity of the population without bias against age, gender, socio-economic level, race, religion, physical disabilities, or any other factor.
In addition, ECA/A/S/A support is contingent upon the following standards of operation:
Advisers at the centers should participate in the Eurasia advising listserv and maintain contact with other educational advisers in Eurasia and other regions. This listserv is administered by the Educational Information and Resources Branch and is open to educational advisers working at Department of State-affiliated advising centers.
ECA/A/S/A requests that your organization consider providing cost sharing for educational advisers to attend/participate in professional development conferences.
Unless an educational advising center is removed from the list of State Department-approved EducationUSA advising centers, each center should prominently display in the center and on its website, if one exists, the EducationUSA name and logo, as part of the State Department's effort to build recognition of the EducationUSA brand.
Applications may be submitted by public and private non-profit organizations meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3).
There is no minimum or maximum percentage required for this competition. However, the Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs.
When cost sharing is offered, it is understood and agreed that the applicant must provide the amount of cost sharing as stipulated in its proposal and later included in an approved grant agreement. Cost sharing may be in the form of allowable direct or indirect costs. For accountability, you must maintain written records to support all costs which are claimed as your contribution, as well as costs to be paid by the Federal government. Such records are subject to audit. The basis for determining the value of cash and in-kind contributions must be in accordance with OMB Circular A-110, (Revised), Subpart C.23—Cost Sharing and Matching. In the event you do not provide the minimum amount of cost sharing as stipulated in the approved budget, ECA's contribution will be reduced in like proportion.
Grants awarded to eligible organizations with less than four years of experience in conducting international exchange programs will be limited to $60,000.
Please read the complete
Please contact the Educational Information and Resources Branch, ECA/A/S/A, Room 349, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547,
The Solicitation Package contains the Proposal Submission Instruction (PSI) document that consists of required application forms, and standard guidelines for proposal preparation.
It also contains the Project Objectives, Goals and Implementation (POGI) document, which provides specific information, award criteria and budget instructions tailored to this competition.
Please specify Bureau Program Officer Dorothy Mora and refer to the Funding Opportunity Number ECA/A/S/A-05-07 located at the top of this announcement on all other inquiries and correspondence.
The entire Solicitation Package may be downloaded from the Bureau's Web site at
Applicants must follow all instructions in the Solicitation Package. The original and eight copies of the application should be sent per the instructions under IV.3e. “Submission Dates and Times section” below. Applicants must also submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk. The Bureau will provide these files electronically to the Public Affairs Section at the U.S. embassies and consulates in Eurasia for review.
IV.3a. You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the U.S. Government. This number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
IV.3b. All proposals must contain an executive summary, proposal narrative and budget.
Please Refer to the Solicitation Package. It contains the mandatory Proposal Submission Instructions (PSI) document and the Project Objectives, Goals and Implementation (POGI) document for additional formatting and technical requirements.
IV.3c. You must have nonprofit status with the IRS at the time of application. If your organization is a private nonprofit which has not received a grant or cooperative agreement from ECA in the past three years, or if your organization received nonprofit status from the IRS within the past four years, you must submit the necessary documentation to verify nonprofit status as directed in the PSI document. Failure to do so will cause your proposal to be declared technically ineligible.
IV.3d. Please take into consideration the following information when preparing your proposal narrative: Proposals should include a plan to work with the American Corner network in Eurasia. Proposals should also address cooperation with the IATP network and alumni groups where practical.
IV.3d.2 Diversity, Freedom and Democracy Guidelines. Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the ‘Support for Diversity’ section for specific suggestions on incorporating diversity into your proposal. Public Law 104-319 provides that “in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,” the Bureau “shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.” Public Law 106—113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible.
IV.3d.3. Program Monitoring and Evaluation. Proposals must include a plan to monitor and evaluate the project's success, both as the activities unfold and at the end of the program. The Bureau recommends that your proposal include a draft survey questionnaire or other technique plus a description of a methodology to use to link outcomes to original project objectives. The Bureau expects that the grantee will track participants or partners and be able to respond to key evaluation questions, including satisfaction with the program, learning as a result of the program, changes in behavior as a result of the program, and effects of the program on institutions (institutions in which participants work or partner institutions). The evaluation plan should include indicators that measure gains in mutual understanding as well as substantive knowledge.
Successful monitoring and evaluation depend heavily on setting clear goals and outcomes at the outset of a program. Your evaluation plan should include a description of your project's objectives, your anticipated project outcomes, and how and when you intend to measure these outcomes (performance indicators). The more that outcomes are “smart” (specific, measurable, attainable, results-oriented, and placed in a reasonable time frame), the easier it will be to conduct the evaluation. You should also show how your project objectives link to the goals of the program described in this RFGP.
Your monitoring and evaluation plan should clearly distinguish between program
We encourage you to assess the following four levels of outcomes, as they relate to the program goals set out in the RFGP (listed here in increasing order of importance):
1.
2.
3.
4.
Consideration should be given to the appropriate timing of data collection for each level of outcome. For example, satisfaction is usually captured as a short-term outcome, whereas behavior and institutional changes are normally considered longer-term outcomes.
Overall, the quality of your monitoring and evaluation plan will be judged on how well it: (1) Specifies intended outcomes; (2) gives clear descriptions of how each outcome will be measured; (3) identifies when particular outcomes will be measured; and (4) provides a clear description of the data collection strategies for each outcome (
Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
Describe your plans for: sustainability, overall program management, staffing, coordination with ECA and PAS.
IV.3e.1. Applicants must submit a comprehensive budget for the entire program. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification.
IV.3.e.2. Allowable costs for the educational advising program include the following:
(1) Educational advising staff salaries and benefits;
(2) Office supplies and expenses, including rent, communications, postage and shipping;
(3) Outreach and publicity costs;
(4) Indirect costs; Allowable costs for the REAC include the following:
(1) REAC salary and benefits;
(2) Travel and per diem costs for site visits and training within the Eurasia region;
(3) Travel for REAC to attend NAFSA National Conference in Seattle, Washington for one week, and an additional week of REAC meetings in Washington, DC in May/June 2005;
(4) Program costs for internship training programs and other training workshops. This may include participant travel and per diem, supplies, venue costs, and honoraria for speakers;
(5) Office and administrative costs, including communication and equipment.
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
IV.3f. Submission Dates and Times:
Applicants must follow all instructions in the Solicitation Package.
When preparing your submission please make sure to include one extra copy of the completed SF-424 form and place it in an envelope addressed to “ECA/EX/PM”.
The original and eight copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/S/A-05-07, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Along with the Project Title, all applicants must enter the above Reference Number in Box 11 on the SF-424 contained in the mandatory Proposal Submission Instructions (PSI) of the solicitation document.
IV.3g. Intergovernmental Review of Applications: Executive Order 12372 does not apply to this program.
Applicants must also submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk. The Bureau will provide these files electronically to the appropriate Public Affairs Section(s) at the U.S. embassy(ies) for its(their) review.
The Bureau will review all proposals for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Affairs Sections overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards and cooperative agreements resides with the Bureau's Grants Officer.
Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation:
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Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures. Successful applicants will receive an Assistance Award Document (AAD) from the Bureau's Grants Office. The AAD and the original grant proposal with subsequent modifications (if applicable) shall be the only binding authorizing document between the recipient and the U.S. Government. The AAD will be signed by an authorized Grants Officer, and mailed to the recipient's responsible officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review from the ECA program office coordinating this competition.
Terms and Conditions for the Administration of ECA agreements include the following:
Please reference the following websites for additional information:
You must provide ECA with a hard copy original plus two copies of the following reports:
A final program and financial report no more than 90 days after the expiration of the award;
Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. (Please refer to IV. Application and Submission Instructions (IV.3.d.3) above for Program Monitoring and Evaluation information.
All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
All reports must be sent to the ECA Grants Officer and ECA Program Officer listed in the final assistance award document.
(1) Name, address, contact information and biographic sketch of all persons who travel internationally on funds provided by the grant or who benefit from the grant funding but do not travel.
(2) Itineraries of international and domestic travel, providing dates of travel and cities in which any exchange experiences take place. Final schedules for in-country and U.S. activities must be received by the ECA Program Officer at least three work days prior to the official opening of the activity.
For questions about this announcement, contact: The Educational Information and Resources Branch, ECA/A/S/A, room 349, U.S. Department of State, 301 4th Street, SW., Washington, DC 20547, telephone: 202-260-6936, fax: 202-401-1433,
All correspondence with the Bureau concerning this RFGP should reference the above title and number ECA/A/S/A-05-07.
Please read the complete
The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements per section VI.3 above.
Office of the United States Trade Representative.
Notice and request for comments.
The Trade Policy Staff Committee (TPSC) is requesting written public comments with respect to the expansion of market access opportunities in government procurement under the World Trade Organization Agreement on Government Procurement. The specific information being sought is described in the background section below.
Public Comments are due by noon, November 1, 2004.
Offices of the U.S. Trade Representative, 600 17th Street, NW., Washington, DC 20508. Submissions by electronic mail:
For procedural questions concerning public comments, contact Gloria Blue, Executive Secretary, TPSC, Office of the USTR, 1725 F. Street, NW, Washington, DC 20508, telephone (202) 395-3475. Questions concerning the expansion of market access opportunities in government procurement should be addressed to Jean Heilman Grier, Senior Procurement Negotiator, Office of the USTR, (202) 395-5097, or Scott Pietan, Department of Commerce, (202) 482-4337.
The Chairman of the TPSC invites written comments from the public on the expansion of market access opportunities in government procurement under the World Trade Organization (WTO) Agreement on Government Procurement (GPA). Comments should identify specific improvements that are needed in the current coverage of the Parties to the GPA. Such requests could include the addition of specific government entities, state-owned enterprises or other government-related entities, the addition of services covered by the Agreement, and the removal of existing discriminatory measures or exclusions.
The Appendices with the current market access commitments or coverage of each Party can be found on the WTO Web site at
The GPA is a plurilateral agreement that currently applies to 38 Members of the WTO. In addition to the United States, they are: Canada, European Communities (including its 25 member States: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, Netherlands, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom), Hong Kong China, Iceland, Israel, Japan, Korea, Liechtenstein, Netherlands with respect to Aruba, Norway, Singapore, and Switzerland. The GPA includes both procedures that all the Parties are required to follow when they undertake procurements covered by the GPA and market access obligations in the Appendices to the Agreement.
The Appendices include for each Party a positive list of the government entities that are required to comply with the Agreement when they undertake procurement above specified thresholds, subject to exclusions of certain goods. The government entities covered by the GPA include central government entities and government-related enterprises (such as state-owned enterprises), as well as, for most Parties, sub-central government entities. The Appendices also include a list of the services covered by the Party. In addition, the Parties set out exclusions and discriminatory measures in the Appendices.
The GPA calls for negotiations aimed at increasing market access opportunities under the Agreement through the greatest possible extension of coverage of government procurement by the Parties, on the basis of reciprocity, and the elimination of discriminatory measures and practices that distort open procurement. The GPA Parties have agreed to commence bilateral negotiations with the submission of initial requests to the other Parties for improvements in their coverage under the GPA by the end of November 2004. Based on the requests, the Parties will exchange offers in the spring of 2005.
The comments will be considered in developing U.S. positions in the negotiations, including requests for improvements in the market access provided by other Parties under the GPA.
In order to facilitate prompt processing of submissions, USTR strongly urges and prefers electronic (e-mail) submissions in response to this notice.
Persons making submissions by e-mail should use the following subject line: “Expansion of Market Access under the WTO/GPA” followed by “Written Comments.” Documents should be submitted as WordPerfect, MSWord, or text (.txt) files. Supporting documentation submitted as spreadsheets are acceptable in Quattro Pro or Excel.
For any document containing business confidential information submitted electronically, the file name of the business confidential version should begin with the characters “BC-”, and the file name of the public version should begin with the characters “P-”. The “P-” or “BC-” should be followed by the name of the submitter. Persons who make submissions by e-mail should not provide separate cover letters; information that might appear in a cover letter should be included in the submission itself. To the extent possible, any attachments to the submission should be included in the same file as the submission itself, and not as separate files.
Written comments submitted in response to this request will be placed in a file open to public inspection pursuant to 15 CFR 2003.5, except business confidential information exempt from public inspection in accordance with 15 CFR 2003.6. Business confidential information submitted in accordance with 15 CFR 2003.6 must be clearly market “Business Confidential” at the top of each page, including any cover letter or cover page, and must be accompanied by a nonconfidential summary of the confidential information. All public documents and nonconfidential summaries shall be available for public inspection in the USTR Reading Room. The USTR Reading Room is open to the public, by appointment only, from 10 a.m. to 12 noon and 1 p.m. to 4 p.m., Monday through Friday. An appointment to review the file must be scheduled at least 48 hours in advance
General information concerning the Office of the United States Trade Representative may be obtained by accessing its Internet Web site (
Federal Highway Administration (FHWA) and Alaska Department of Transportation and Public Facilities (ADOT&PF).
Notice of intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement (EIS) will be prepared for the West Dowling Road Connection Project located in the Municipality of Anchorage, Alaska.
Edrie Vinson, Environmental Project Manager, Federal Highway Administration, P O Box 21648, Juneau, AK 99802, (907) 586-7464 or Miriam Tanaka, P.E. Project Manager, ADOT&PF, Box 196900, Anchorage, AK 99519, (907) 269-0546.
The FHWA, in cooperation with the ADOT&PF, will prepare an EIS for the West Dowling Road Connection Project. The ADOT&PF has identified the need to enhance roadway connectivity and construct accessibility improvements in the West Dowling Road Connection Project area. The arterial network in the project area is poorly connected. Of the roads that are classified as arterials, none connect east-west across the project area. The road network that does exist (minor arterials and collectors that feed traffic to the arterials) is discontinuous, which limits accessibility and mobility within and through the project area. East-west barriers to through traffic in the project area are Campbell Creek, the Alaska Railroad tracks, and the controlled-access freeways (New Seward Highway and Minnesota Drive). Because of the limited roadway connections, accessibility is a concern of emergency service providers. For the land uses within the project area, the incomplete road network often results in long and circuitous trip patterns. The lack of connectivity also hampers neighborhood access to residential areas and truck access to industrial areas. These problems add to traffic congestion on the adjacent street network. The project is identified in Anchorage's long-range transportation plan. As such, the improvement is an important component of maintaining compliance with federal carbon monoxide (CO) standards (Anchorage was recently reclassified from nonattainment to maintenance for CO).
A number of alternatives have been identified through a planning and scoping process. The EIS will examine the No-Build alternative and three build alternatives.
Project planning for the West Dowling Road Connection Project has been underway since 2002 with preliminary engineering and a public and agency scoping process. Stakeholder interviews held in August of 2002 provided an early, informal opportunity to meet with agency representatives to assess their expectations for involvement and to begin identifying agency-specific issues/concerns regarding the project. An initial round of public and agency scoping meetings was held on October 30, 2002. The second set of public and agency scoping meetings was held on May 14, 2003. A scoping summary report summarizing the public and agency scoping was published in November of 2003 and is available at the following Web site:
Based on project issues and on public and agency involvement to date, the FHWA has determined an EIS is required. Official notice of agency and public scoping for the EIS will be issued in the near future. A public hearing will be held following the publication of the Draft EIS. Notice of the availability of the Draft EIS and date and location of the hearing will be published in the
Surface Transportation Board.
Notice of Exemption.
The Board grants an exemption, under 49 U.S.C. 10502, from the prior approval requirements of 49 U.S.C. 11323-25 for Genesee & Wyoming, Inc. (GWI), a noncarrier, to continue in control of Tazewell & Peoria Railroad, Inc. (TPR), upon TPR's becoming a rail carrier pursuant to a related transaction involving the lease and operation of a line of the Peoria and Pekin Union Railway Company.
This exemption will be effective on October 28, 2004. Petitions to stay must be filed by October 15, 2004. Petitions to reopen must be filed by October 22, 2004.
Send an original and 10 copies of all pleadings, referring to STB Finance Docket No. 34545, to: Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, send one copy of pleadings to Jo A. DeRoche, Weiner Brodsky Sidman Kider PC, 1300 19th Street, NW., Fifth Floor, Washington, DC 20036-1609.
Eric S. Davis, (202) 565-1600 [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339].
Additional information is contained in the Board's decision. To purchase a copy of the full decision, write to, e-mail or call: ASAP Document Solutions, 9332 Annapolis Rd., Suite 103, Lanham, MD 20706; e-mail
Board decisions and notices are available on our Web site at
By the Board, Chairman Nober, Vice Chairman Mulvey, and Commissioner Buttrey.
The Burlington Northern and Santa Fe Railway Company (BNSF), pursuant to a written trackage rights agreement entered into between BNSF and Union Pacific Railroad Company (UP), has agreed to grant local trackage rights to UP
The transaction was scheduled to be consummated on September 24, 2004.
The purpose of the trackage rights is to permit UP to move loaded and empty ballast trains for use in its maintenance-of-way projects.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(7). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34554 must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Robert T. Opal, 1400 Douglas Street, STOP 1580, Omaha, NE 68179.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995. OTS is soliciting public comments on the proposal.
Submit written comments on or before November 8, 2004.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to OMB and OTS at these addresses: Mark D. Menchik, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10236, New Executive Office Building, Washington, DC 20503, or e-mail to
To obtain a copy of the submission to OMB, contact Marilyn K. Burton at
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
By the Office of Thrift Supervision.
In rule document 04-19478 beginning on page 55743 in the issue of Thursday, September 16, 2004, make the following corrections:
1. On page 55743, in the second column, in the first full paragraph, in the tenth line, “sect;1.6091-1(b)” should read “§ 1.6091-1(b).”
2. On page 55744, in the second column, in 1.6091-2(a), in the second line, “paragraph (c) § f” should read “paragraph (c) of.”
3. On the same page, in the third column, § 1.6091-3, after amendatory instruction 12., in the next line, the phrase, “
Social Security Administration (SSA).
Final rules.
We are revising our regulations that explain the procedures we follow in determining the need for a representative payee, the procedures we follow in selecting a representative payee, the responsibilities of a representative payee, and restitution of misused benefits under titles II, VIII and XVI of the Social Security Act (the Act). This regulation codifies SSA's representative payee policy based on statutory changes made during 1990-1999 and includes one provision enacted in 2004. Part 408 sets forth our rules applicable to claims for special veteran's benefits (SVB) under title VIII of the Act. We began making payments under the SVB program in May 2000. We are adding a new subpart F (Representative Payment) to part 408.
The changes to the representative payee provisions of the regulations reflect several statutory changes that provide protection for beneficiaries who need representative payees. These changes include representative payment procedures for investigating payee applicants, identifying unsuitable applicants, making direct payment in some circumstances, providing advance notice of our determination to make representative payment, and providing affected beneficiaries with the opportunity to appeal our determinations. Also included are procedures for making restitution of benefits where a payee has misused a beneficiary's payments and representative payee policies and procedures for the title VIII program.
These rules are effective November 8, 2004.
Regarding this
The electronic file of this document is available on the date of publication in the
Subpart U of part 404 and subpart F of part 416 of our regulations explain the principles and procedures that we follow in determining whether to make representative payment and in selecting a representative payee under the title II and title XVI programs. These subparts also describe the responsibilities of a representative payee regarding the use of benefits the payee receives on behalf of the beneficiary. Under the authority provided in sections 205(j) and 1631(a)(2) of the Act and these regulations, we select a representative payee for a person receiving Social Security benefits under title II or supplemental security income (SSI) benefits under title XVI of the Act if we believe that representative payment rather than direct payment of benefits is in the best interest of that person.
In selecting a representative payee, we choose the person, agency, or organization that we believe will best serve the interest of a beneficiary. Any person or organization chosen as a representative payee must use benefits and accept all payee responsibilities as required under the Act and our regulations.
Sections 5105(a)(1) and (2), and (c) of Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA 90) enacted November 5, 1990, amended sections 205(j) and 1631(a)(2) of the Act. These sections of OBRA 90 made numerous modifications and additions to the representative payee provisions of the Act and were intended to provide additional safeguards and protection for beneficiaries who need representative payees. These modifications and additions include:
• Investigating representative payee applicants;
• Identifying unsuitable representative payee applicants;
• Making direct payment to some beneficiaries while we try to find a representative payee;
• Allowing a delay or suspension of direct payment for one month (or longer under certain exceptions) when searching for a representative payee where direct payment would cause substantial harm to the beneficiary;
• Providing advance notice to the beneficiary of determinations to make representative payment and selections of representative payees;
• Providing beneficiaries with the opportunity to appeal our determination to make representative payment or to select a particular representative payee;
• Making restitution (in some instances) to beneficiaries of benefits misused by representative payees; and
• Making a good faith effort in those instances to obtain restitution from terminated representative payees who have misused benefits.
The restitution provision of section 5105(c) of OBRA 90, amending sections 205(j) and 1631(a)(2) of the Act, was effective November 5, 1990—the date OBRA 90 was enacted. These restitution provisions were later amended by Public Law 108-203, which was enacted March 2, 2004. That amendment is effective for determinations of misuse made on or after January 1, 1995. The provision in Public Law 108-203 regarding misuse is discussed below. The other OBRA 90 representative payee provisions addressed by these rules were effective with respect to determinations regarding payment of benefits to representative payees made on or after July 1, 1991.
As noted above, Public Law 108-203 was enacted March 2, 2004, several months after we published the proposed rules for representative payment under title II, VIII, and XVI of the Act. The misuse provision in Public Law 108-203 is effective immediately and requires SSA to provide restitution of misused benefits when the representative payee is an organization or an individual payee serving 15 or more beneficiaries. Prior to the enactment of Public Law 108-203, SSA would repay benefits only when we determined SSA was negligent in investigating or monitoring the payee and that negligence contributed to or failed to prevent the misuse. SSA does not have discretion in implementing the new restitution requirement, as the statutory obligation is very specific. Accordingly, we are including this restitution provision in these final rules, rather than including it in a NPRM with other Pub. L. 108-203 provisions that are subject to comment and a delayed effective date.
Section 201 of Public Law 103-296, the Social Security Independence and Program Improvements Act of 1994 (SSIPIA 94), enacted August 15, 1994:
• Extends the authority for qualified organizations to collect fees for representative payee services beyond the July 1, 1994, sunset date;
• Included State or local government agencies as qualified organizations for purposes of collecting fees; and
• Required an annual adjustment (beginning with December 1996) to the limit on the fee collected by qualified organizations for providing payee services.
Section 105 of Public Law 104-121, the Contract With America Advancement Act of 1996, enacted March 29, 1996, eliminated disability benefits based on drug addiction and/or alcoholism (DAA). However, individuals are considered to have a DAA condition when there is medical evidence of DAA, but the DAA is not material to the disability determination. Under Public Law 104-121, individuals with a DAA condition (as determined by the Commissioner), who are eligible for Social Security or SSI benefits based on a disability other than DAA and who are also found to be incapable of managing their own benefits, must have a representative payee if the Commissioner determines that representative payment would serve the interests of the individual. The statute also provided an exception to the one-month limit on suspension of benefit payment while we are looking for a representative payee for an individual with a DAA condition. Appointment of organizational representative payees for incapable individuals with a DAA condition is preferred; however, in certain cases we may select a family member.
Section 5525(b) of Public Law 105-33, the Balanced Budget Act of 1997, enacted August 5, 1997, provided technical amendments to the title XVI portions of Public Law 104-121 relating to the effective date of provisions concerning representative payees. Effective July 1, 1996, or later, certain individuals with a DAA condition who were found to be incapable of managing their benefits would be paid through a representative payee. In addition, section 401 of Public Law 106-170, the Ticket to Work and Work Incentives Improvement Act of 1999, provided technical amendments to Public Law 104-121 to change the effective date of the title II representative payee and referral provisions applicable to individuals with a DAA condition.
Section 251 of Public Law 106-169, the Foster Care Independence Act of 1999, enacted on December 14, 1999, added a new title VIII program to the Act—Special Benefits for Certain World War II Veterans. Title VIII requires SSA to pay SVB to certain World War II Veterans. Section 807 of the Act authorizes SSA to pay SVB to a representative payee when we determine that would be in the beneficiary's interest. We are adding a new subpart F—Representative Payment to part 408 of our regulations to set forth the representative payment rules applicable to the SVB program.
Section 101 of Public Law 108-203, the Social Security Protection Act of 2004, enacted March 2, 2004, eliminated the requirement in cases of certain representative payees that SSA must be negligent in fully following agency procedures before it is required to repay the amount of misused benefits to beneficiaries. Effective for determinations of misuse made on or after January 1, 1995, SSA must re-issue benefits under Titles II, VIII, or XVI whenever an individual representative payee serving 15 or more beneficiaries or an organizational representative payee is found to have misused a beneficiary's benefits. If an individual payee serving fewer than 15 beneficiaries misuses a beneficiary's benefits, we will be liable for repayment of the misused benefits only when our negligent failure to investigate or monitor the representative payee results in misuse by the payee.
As discussed above, we are including the restitution provision of Public Law 108-203 in these final rules because it is effective immediately, and the requirement is very specific and does not allow SSA discretion in how to implement it.
Public Law 108-203 makes a number of additional changes to provisions related to representative payees under Titles II, VIII, XI, and XVI of the Act. We will promulgate regulations to implement these changes at a later date.
We are making the following changes in our regulations to reflect the amendments to the Act made by sections 5105(a)(1) and (2), and (c) of Public Law 101-508; section 201 of Public Law 103-296; section 105 of Public Law 104-121; section 5525(b) of Public Law 105-33; section 251 of Public 106-169; section 401 of Public Law 106-170 and section 101 of Public Law 108-203.
We are amending existing §§ 404.902 and 416.1402 to include a determination on restitution as an initial determination subject to the administrative review process. This change reflects our view that our determination regarding a person's right to restitution is a decision covered by sections 205(b)(1) and 1631(c)(1) of the Act and is an initial determination subject to the administrative review process.
We are adding new §§ 404.2011 and 416.611 to explain that when we have determined a beneficiary needs to be paid through a representative payee and a representative payee is not immediately available:
1. We will pay monthly benefits directly to a beneficiary who we determine should have a representative payee until a suitable representative payee is selected, unless we determine that direct payment of these benefits will result in substantial harm to the beneficiary.
2. Findings of substantial harm will be made on a case-by-case basis. We will find substantial harm in cases where direct payment of benefits is expected to result in serious physical or mental injury to the beneficiary. We also will find substantial harm to exist when the beneficiary is legally incompetent, under age 15, or is receiving disability payments and we have determined that he or she has a DAA condition. However, we will allow these individuals to provide evidence that direct payment would not cause substantial harm. If we find upon review of this evidence that direct payment will not result in substantial harm, then we will make direct payment to the individual.
3. Findings of substantial harm are not considered initial determinations subject to appeal rights. A finding of substantial harm will not materially affect the beneficiary because delay or suspension of direct payment is temporary. Beneficiaries who have their benefits temporarily suspended can
4. If we find that direct payment to an individual would cause substantial harm, we may delay or suspend benefits up to 1 month. If the beneficiary who needs a representative payee is legally incompetent, under age 15, or receiving disability payments and determined by us to have a DAA condition and is incapable, we may delay payments for more than 1 month.
5. Payment of any benefits that were deferred or suspended pending selection of a representative payee will be made to the beneficiary or the representative payee as a single sum, or in installments when we determine that installments are in the best interest of the beneficiary.
We are adding new §§ 404.2022 and 416.622 to explain that:
1. A representative payee applicant convicted of a violation under section 208, 811 or 1632 of the Act may never serve as a representative payee. This prohibition was in sections 208 and 1632 of the Act prior to enactment of section 5105(a)(2) of OBRA 90 but was never included in our regulations. We added section 811 violations because of the enactment of the new SVB program (section 807 of the Act).
2. A representative payee applicant receiving Social Security, SVB or SSI benefits through a representative payee may not serve as a representative payee. These individuals have already been determined to be incapable of managing their own benefits.
3. A representative payee applicant whose prior certification or appointment as representative payee was revoked or terminated for misusing title II, VIII or XVI benefits generally may not be appointed as a representative payee. We may make an exception to this prohibition on a case-by-case basis if:
• Direct payment is not possible,
• No suitable alternative payee is available,
• Payment to the payee applicant would serve the best interest of the beneficiary,
• The information we have indicates the applicant is now suitable to serve as payee, and
• The applicant has repaid the misused benefits or has a plan to repay them.
If such an applicant is appointed, evaluation(s) of the applicant's performance as representative payee will be conducted periodically at intervals not to exceed 3 months until we are satisfied that the payee poses no risk to the beneficiary and is likely to perform in the beneficiary's best interest.
4. Payment will not be certified to a representative payee applicant who is a creditor of the beneficiary (
• A relative of the beneficiary living in the same household as the beneficiary;
• A legal guardian or legal representative of the beneficiary;
• A facility that is licensed or certified as a care facility under State or local law, or an administrator, owner, or employee of such a facility and the selection of the facility or such person is made only after we have attempted to locate an alternative representative payee who would better serve the interests of the beneficiary;
• An individual we determine to be acceptable to serve as a representative payee because we have determined that the individual poses no risk to the beneficiary, the financial relationship of the applicant to the beneficiary poses no substantial conflict of interest, and a more suitable representative payee cannot be found; or
• A qualified organization authorized to collect a monthly fee from the beneficiary for expenses incurred by the organization in providing services performed as the individual's representative payee.
We are adding new §§ 404.2024 and 416.624 to explain that before certifying payment to a representative payee applicant, we will conduct an investigation of the payee applicant to determine the applicant's suitability. A face-to-face interview will be included as part of the investigation unless it is impracticable to do so. A face-to-face interview may be considered impracticable if it would cause the representative payee applicant undue hardship. Undue hardship exists when the applicant cannot reasonably make arrangements to visit the Social Security field office. During the investigation, we will:
• Require the payee applicant to submit documented proof of identity, unless such information has been submitted with an application for titles II, VIII or XVI benefits;
• Verify the payee applicant's Social Security account number or employer identification number;
• Determine whether the payee applicant has been convicted of a violation under section 208, 811, or 1632 of the Act;
• Determine whether the payee applicant previously served as a representative payee and had his or her certification revoked or terminated because of misuse of title II, VIII or XVI benefits.
We are amending existing §§ 404.2030 and 416.630 to explain that whenever we intend to make representative payment or to appoint a particular representative payee, we will provide written notice to the beneficiary (or the legal guardian or the legal representative of the beneficiary) in advance of actually appointing the payee and certifying payment. This will allow the beneficiary the opportunity to appeal the proposed representative payee appointment. The advance notice will:
• Be clearly written in language that is easily understandable to the reader;
• Identify the person to be designated as representative payee;
• Explain the right of the beneficiary (or the legal guardian or legal representative of the beneficiary) to appeal our determination that a representative payee is necessary;
• Explain the right to appeal the designation of a particular person to serve as the representative payee of the beneficiary; and
• Explain the right to review the evidence upon which the payee designation is based, and to submit additional evidence.
If the beneficiary, or his or her legal guardian or legal representative, appeals and the appeal is received before the appointment of the representative payee is effective, the appointment will not be processed until the appeal has been resolved in accordance with subpart J of part 404 or subpart N of part 416. We will pay current monthly benefits directly to the beneficiary, where appropriate, in accordance with §§ 404.2011 and 416.611, until we select a payee.
We are amending existing §§ 404.2040a and 416.640a to remove the requirement that the organization must have been in existence prior to October 1, 1988. We are including State or local government agencies as qualified organizations for purposes of collecting fees. We are also revising paragraph (g), Limitation on fees, to reflect that the limit on fees collected by such organizations increases annually by the same percentage as the cost of living adjustment. Our NPRM
We are amending existing §§ 404.2041 and 416.641 to explain that:
• The representative payee is liable for misuse of the beneficiary's benefits and is responsible for paying back misused benefits to us. We will always make every reasonable effort to obtain restitution of misused benefits and repay them to the beneficiary;
• In addition, we will be liable for repayment of misused benefits whenever an individual representative payee serving 15 or more beneficiaries or an organizational representative payee is found to have misused a beneficiary's benefits.
• In all other cases of misuse, we will be liable for repayment of the misused benefits when our negligent failure to investigate or monitor the representative payee results in misuse by the payee. The term “negligent failure” as used in the regulation means that we failed to investigate or monitor a representative payee or that we did investigate or monitor the payee but were negligent in that effort;
• For title XVI purposes, our repayment of misused funds will include any portion of misused SSI benefits which are State supplementary payments.
• If we determine that repayment of misused benefits is appropriate, we will certify for payment to the beneficiary or the beneficiary's new representative payee an amount equal to such misused benefits.
We are amending existing §§ 404.2050 and 416.650 to reflect changes made by section 5105(a)(1) of OBRA 90 requiring that we will promptly stop payment to a representative payee and make payment directly to the beneficiary or to a new payee if we, or a court of competent jurisdiction, determine that the representative payee has misused the beneficiary's benefits. We may make exceptions to this rule on a case-by-case basis if the requirements discussed in C.3. above are met.
We are amending existing §§ 404.2065 and 416.665 to show that an annual accounting of benefits is required from all representative payees except for certain State institutions, and to clarify the types of questions included in the accounting report. We also clarify that payees must keep records and make them available to us upon request.
We are amending existing §§ 404.2025 and 416.625 to change the title of the sections to “What information must a representative payee report to us?”, move existing paragraph (a) of these sections with minor revisions to new §§ 404.2024 and 416.624 as new paragraph (a)(8) and keep existing paragraph (b) as an undesignated paragraph under §§ 404.2025 and 416.625.
We are also amending existing §§ 404.902(o) and 416.1402(d) to give any individual who is dissatisfied with the determination that he or she needs a payee the right to a hearing on the matter.
We added a new paragraph §§ 404.902(x) and 416.1402(o) to include the determination whether SSA was negligent in investigating or monitoring or failing to investigate or monitor the representative payee which resulted in misuse of benefits by a representative payee as an initial determination subject to judicial review.
Section 807 of the Act authorizes SSA to pay SVB benefits to a representative payee when we determine that would be in the best interest of the beneficiary. The title VIII provisions on representative payment closely parallel the representative payment provisions in titles II and XVI of the Act (although not all title II/XVI provisions apply to the title VIII program). We are therefore adding a new subpart F to part 408 which includes an introductory section on representative payment in the title VIII program followed by sections (with the exception of § 408.630) that refer users to the sections in part 404 that deal with the appropriate topics. Subpart F consists of the following sections:
• Section 408.601 introduces subpart F.
• Section 408.610 provides a cross-reference to § 404.2010(a), which explains the circumstances under which we will make representative payment.
• Section 408.611 provides a cross-reference to § 404.2011, which explains what happens to your monthly benefits while we are finding a suitable representative payee.
• Section 408.615 provides a cross-reference to § 404.2015, which explains the kinds of information we consider in determining whether to make representative payment.
• Section 408.620 provides a cross-reference to § 404.2020, which explains the information we consider in determining an appropriate representative payee for you.
• Section 408.621 provides a cross-reference to § 404.2021(a), which provides a list of the payees that we prefer to serve your interests.
• Section 408.622 provides a cross-reference to § 404.2022, which contains a list of individuals whom we generally will not select as your representative payee.
• Section 408.624 provides a cross-reference to § 404.2024, which explains how we investigate whether an individual is suitable to serve as a representative payee, including the requirement that we conduct a face-to-face interview with the payee applicant unless it is impracticable to do so.
• Section 408.625 provides a cross-reference to § 404.2025, which explains the information a representative payee or payee applicant must give us.
• Section 408.630 explains how we will notify you when we decide you need a representative payee.
• Section 408.635 provides a cross-reference to § 404.2035, which explains the responsibilities of a representative payee.
• Section 408.640 provides a cross-reference to § 404.2040, which explains how a representative payee must use the SVB payments he or she receives on your behalf.
• Section 408.641 provides a cross-reference to § 404.2041, which explains who is liable when a representative payee misuses the benefits he or she receives on your behalf.
• Section 408.645 provides a cross-reference to § 404.2045, which explains the rules your representative payee must follow to conserve or invest excess benefits, contains a list of preferred investments, and explains that any interest and dividends that result from an investment is your property, not the property of your payee.
• Section 408.650 provides a cross-reference to § 404.2050, which explains when we will select a new representative payee for you.
• Section 408.655 provides a cross-reference to § 404.2055, which explains when we will stop representative payment and begin making payment directly to you.
• Section 408.660 provides a cross-reference to § 404.2060, which explains what happens to accumulated funds when your representative payee changes.
• Section 408.665 provides a cross-reference to § 404.2065, which explains how we require your representative payee to verify that he or she used your benefits on your behalf.
• Section 408.655 provides a cross-reference to § 404.2055, which explains when we will stop representative payment and begin making payment directly to you.
On September 25, 2003, we published proposed rules in the
(1) The advance notice, sent before effectuation of any payee appointment, contains language regarding the identity of the proposed representative payee. However, we do not require institutions to set aside funds for the beneficiary's use after release from the institution. As explained in §§ 404.2040(b) and 416.640(b), we consider funds to have been used for the use and benefit of the beneficiary if they are used for the beneficiary's current care and maintenance. Any remaining funds should be conserved or invested for the beneficiary pursuant to § 404.2045.
(2) SSA requires that all representative payees remain informed of beneficiaries’ needs (
(3) If we are aware of family interest in being a representative payee, we will solicit an application from family members. However, SSA's responsibility is to appoint the person, agency, organization or institution who can best serve the interest of the beneficiary. Thus family members will be evaluated under this standard along with any other applicants.
We have consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were reviewed by OMB. However, the estimated amounts of the savings or costs involved do not cross the threshold for an economically significant regulation as defined in Executive Order 12866, as amended by Executive Order 13258.
We have also determined that these final rules meet the plain language requirement of Executive Order 12866, as amended by Executive Order 13258.
Pursuant to section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5), the Social Security Administration follows the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in the development of its regulations. The APA provides exceptions to its Notice of Proposed Rulemaking (NPRM) procedures when an agency finds that there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. As indicated above, we are including in these final rules a provision on restitution of misused benefits that was enacted March 2, 2004, as part of Public Law 108-203 and, therefore, was not included in the NPRM we published on September 25, 2003. Since this provision was effective on enactment and the statutory requirement is very specific and does not allow SSA discretion in how to implement, we have determined that under 5 U.S.C. 553(b)(B), good cause exists for waiving the NPRM procedures for the restitution provision of Public Law 108-203 included in these rules.
We have reviewed these final rules for compliance with Executive Order 13132 and the Unfunded Mandates Reform Act of 1995 (UMRA of 1995). We have determined that the final rules are not significant within the meaning of the UMRA of 1995 nor will they have any 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 within the meaning of Executive Order 13132.
The provision regarding restitution of misused benefit payments will not significantly impact the States. Even though the States will be responsible for the supplementary payments portion of the restitution, there should only be a small number of cases involved. There are a very small number of representative payees who are found to misuse benefit payments and of that number, misuse involving SSI payments is even smaller. In addition, SSA will seek restitution of misused funds from the terminated representative payee and, if the restitution is obtained, the State will be reimbursed for any State supplementary payment involved.
We certify that these final regulations will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
The Paperwork Reduction Act (PRA) of 1995 says that no persons are required to respond to a collection of information unless it displays a valid OMB control number. In accordance with the PRA, SSA is providing notice that OMB has approved the information collection requirements contained in part 404—subpart U, part 408—subpart F, and part 416—subpart F. The OMB Control Number for these collections is 0960-0679, expiring November 30, 2006.
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security.
Administrative practice and procedure, Aged, Reporting and recordkeeping requirements, Social Security, Special Veterans benefits, Veterans.
Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, supplemental security income (SSI).
Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j), 221, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 425, and 902(a)(5)); 31 U.S.C. 3720A; sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note).
(o) Whether the payment of your benefits will be made, on your behalf, to a representative payee;
(x) Whether we were negligent in investigating or monitoring or failing to investigate or monitor your representative payee, which resulted in the misuse of benefits by your representative payee.
Secs. 205(a), (j), and (k), and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), (j), and (k), and 902(a)(5)).
(a)
(1) If you are receiving disability payments and we have determined that you have a drug addiction or alcoholism condition, or you are legally incompetent, or you are under age 15, we will presume that substantial harm exists. However, we will allow you to rebut this presumption by presenting evidence that direct payment would not cause you substantial harm.
(2) If you do not fit any of these categories, we make findings of substantial harm on a case-by-case basis. We consider all matters that may affect your ability to manage your benefits in your own best interest. We decide that substantial harm exists if both of the following conditions exist:
(i) Directly receiving benefits can be expected to cause you serious physical or mental injury.
(ii) The possible effect of the injury would outweigh the effect of having no income to meet your basic needs.
(b)
(c)
(a) For beneficiaries 18 years old or older (except those described in paragraph (b) of this section), our preference is—
(b) For individuals who are disabled and who have a drug addiction or alcoholism condition our preference is—
(1) A community-based nonprofit social service agency which is licensed by the State, or bonded;
(2) A Federal, State, or local government agency whose mission is to carry out income maintenance, social service, or health care-related activities;
(3) A State or local government agency with fiduciary responsibilities;
(4) A designee of an agency (other than a Federal agency) referred to in paragraphs (b)(1), (2), and (3) of this section, if appropriate; or
(5) A family member.
A representative payee applicant may not serve if he/she:
(a) Has been convicted of a violation under section 208, 811 or 1632 of the Social Security Act.
(b) Receives title II, VIII, or XVI benefits through a representative payee.
(c) Previously served as a representative payee and was found by us, or a court of competent jurisdiction, to have misused title II, VIII or XVI benefits. However, if we decide to make an exception to this prohibition, we must evaluate the payee's performance
(1) Direct payment of benefits to the beneficiary is not in the beneficiary's best interest.
(2) No suitable alternative payee is available.
(3) Selecting the payee applicant as representative payee would be in the best interest of the beneficiary.
(4) The information we have indicates the applicant is now suitable to serve as a representative payee.
(5) The payee applicant has repaid the misused benefits or has a plan to repay them.
(d) Is a creditor. A creditor is someone who provides you with goods or services for consideration. This restriction does not apply to the creditor who poses no risk to you and whose financial relationship with you presents no substantial conflict of interest, and who is any of the following:
(1) A relative living in the same household as you do.
(2) Your legal guardian or legal representative.
(3) A facility that is licensed or certified as a care facility under the law of a State or a political subdivision of a State.
(4) A qualified organization authorized to collect a monthly fee from you for expenses incurred in providing representative payee services for you, under § 404.2040a.
(5) An administrator, owner, or employee of the facility in which you live, and we are unable to locate an alternative representative payee.
(6) Any other individual we deem appropriate based on a written determination.
Before selecting an individual or organization to act as your representative payee, we will perform an investigation.
(a)
(1) Conduct a face-to-face interview with the payee applicant unless it is impracticable as explained in paragraph (b) of this section.
(2) Require the payee applicant to submit documented proof of identity, unless information establishing identity has recently been submitted with an application for title II, VIII or XVI benefits.
(3) Verify the payee applicant's Social Security account number or employer identification number.
(4) Determine whether the payee applicant has been convicted of a violation of section 208, 811 or 1632 of the Social Security Act.
(5) Determine whether the payee applicant has previously served as a representative payee and if any previous appointment as payee was revoked or terminated for misusing title II, VIII or XVI benefits.
(6) Use our records to verify the payee applicant's employment and/or direct receipt of title II, VIII, or XVI benefits.
(7) Verify the payee applicant's concern for the beneficiary with the beneficiary's custodian or other interested person.
(8) Require the payee applicant to provide adequate information showing his or her relationship to the beneficiary and to describe his or her responsibility for the care of the beneficiary.
(9) Determine whether the payee applicant is a creditor of the beneficiary (see § 404.2022(d)).
(b)
Anytime after we select a representative payee for you, we may ask your payee to give us information showing a continuing relationship with you, a continuing responsibility for your care, and how he/she used the payments on your behalf. If your representative payee does not give us the requested information within a reasonable period of time, we may stop sending your benefit payment to him/her—unless we determine that he/she had a satisfactory reason for not meeting our request and we subsequently receive the requested information. If we decide to stop sending your payment to your representative payee, we will consider paying you directly (in accordance with § 404.2011) while we look for a new payee.
(a) We notify you in writing of our determination to make representative payment. This advance notice explains that we have determined that representative payment is in your interest, and it provides the name of the representative payee we have selected. We provide this notice before we actually appoint the payee. If you are under age 15, an unemancipated minor under the age of 18, or legally incompetent, our written notice goes to your legal guardian or legal representative. The advance notice:
(1) Contains language that is easily understandable to the reader.
(2) Identifies the person designated as your representative payee.
(3) Explains that you, your legal guardian, or your legal representative can appeal our determination that you need a representative payee.
(4) Explains that you, your legal guardian, or your legal representative can appeal our designation of a particular person or organization to serve as your representative payee.
(5) Explains that you, your legal guardian, or your legal representative can review the evidence upon which our designation of a particular
(b) If you, your legal guardian, or your legal representative objects to representative payment or to the designated payee, we will handle the objection as follows:
(1) If you disagree with the decision and wish to file an appeal, we will process it under subpart J of this part.
(2) If you received your advance notice by mail and you protest or file your appeal within 10 days after you receive this notice, we will delay the action until we make a decision on your protest or appeal. (If you received and signed your notice while you were in the local field office, our decision will be effective immediately.)
(a)
(1) Any State or local government agency with fiduciary responsibilities or whose mission is to carry out income maintenance, social service, or health care-related activities; or
(2) Any community-based nonprofit social service organization founded for religious, charitable or social welfare purposes, that is tax exempt under section 501(c) of the Internal Revenue Code and that is licensed in the State in which it serves as representative payee or bonded.
(b)
(1) A qualified organization must regularly provide representative payee services concurrently to at least five beneficiaries. An organization which has received our authorization to collect a fee for representative payee services, but is temporarily (not more than 6 months) not a payee for at least five beneficiaries, may request our approval to continue to collect fees.
(2) A qualified organization must demonstrate that it is not a creditor of the beneficiary. See paragraph (c) of this section for exceptions to the requirement regarding creditors.
(c)
(1) The creditor services (
(2) The amount the organization charges the beneficiary for these services is commensurate with the beneficiary's ability to pay.
(d)
(2) An organization seeking authorization to collect a fee must also give us evidence to show that it is qualified, pursuant to paragraphs (a), (b), and (c) of this section, to collect a fee.
(3) If the evidence provided to us by the organization shows that it meets the requirements of this section, and additional investigation by us proves it suitable to serve, we will notify the organization in writing that it is authorized to collect a fee. If we need more evidence, or if we are not able to authorize the collection of a fee, we will also notify the organization in writing that we have not authorized the collection of a fee.
(e)
(2) An organization may cancel its authorization at any time upon written notice to us.
(f)
(g)
(2) Any agreement providing for a fee in excess of the amount permitted shall be void and treated as misuse of your benefits by the organization under § 404.2041.
(3) A fee may be collected for any month during which the organization—
(i) Provides representative payee services;
(ii) Receives a benefit payment for the beneficiary; and
(iii) Is authorized to receive a fee for representative payee services.
(4) Fees for services may not be taken from any funds conserved for the beneficiary by a payee in accordance with § 404.2045.
(5) Generally, an organization may not collect a fee for months in which it does not receive a benefit payment. However, an organization will be allowed to collect a fee for months in which it did not receive a payment if we later issue payment for these months and the organization:
(i) Received our approval to collect a fee for the months for which payment is made;
(ii) Provided payee services in the months for which payment is made; and
(iii) Was the payee when the retroactive payment was paid by us.
(6) An authorized organization can collect a fee for providing representative payee services from another source if the total amount of the fee collected from both the beneficiary and the other source does not exceed the amount authorized by us.
(a) A representative payee who misuses your benefits is responsible for paying back misused benefits. We will make every reasonable effort to obtain restitution of misused benefits so that we can repay these benefits to you.
(b) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that a representative payee misused benefits and the representative payee is an organization or an individual payee serving 15 or more beneficiaries. When we make restitution, we will pay you or your
(c) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that an individual representative payee serving 14 or fewer beneficiaries misused benefits and our negligent failure in the investigation or monitoring of that representative payee results in the misuse. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you.
(d) The term “negligent failure” used in this subpart means that we failed to investigate or monitor a representative payee or that we did investigate or monitor a representative payee but did not follow established procedures in our investigation or monitoring. Examples of our negligent failure include, but are not limited to, the following:
(1) We did not follow our established procedures in this subpart when investigating, appointing, or monitoring a representative payee;
(2) We did not timely investigate a reported allegation of misuse; or
(3) We did not take the necessary steps to prevent the issuance of payments to the representative payee after it was determined that the payee misused benefits.
(e) Our repayment of misused benefits under these provisions does not alter the representative payee's liability and responsibility as described in paragraph (a) of this section.
When we learn that your interest is not served by sending your benefit payment to your present representative payee or that your present payee is no longer able or willing to carry out payee responsibilities, we will promptly stop sending your payment to the payee. We will then send your benefit payment to an alternative payee or directly to you, until we find a suitable payee. We may suspend payment as explained in § 404.2011(c) if we find that paying you directly would cause substantial harm and we cannot find a suitable alternative representative payee before your next payment is due. We will terminate payment of benefits to your representative payee and find a new payee or pay you directly if the present payee:
(a) Has been found by us or a court of competent jurisdiction to have misused your benefits;
(b) Has not used the benefit payments on your behalf in accordance with the guidelines in this subpart;
(c) Has not carried out the other responsibilities described in this subpart;
(d) Dies;
(e) No longer wishes to be your payee;
(f) Is unable to manage your benefit payments; or
(g) Fails to cooperate, within a reasonable time, in providing evidence, accounting, or other information we request.
A representative payee must account for the use of benefits. We require written reports from your representative payee no less than annually (except for certain State institutions which participate in a separate onsite review program). We may verify how your representative payee used the funds. Your representative payee should keep records of how benefits were used in order to make accounting reports and make those records available upon our request. We may ask your representative payee to give us the following information:
(a) Where you lived during the accounting period;
(b) Who made the decisions on how your benefits were spent or saved;
(c) How your benefit payments were used; and
(d) How much of your benefit payments were saved and how the savings were invested.
Secs. 702(a)(5), 807, and 810 of the Social Security Act (42 U.S.C. 902(a)(5), 1007, and 1010).
(a)
(b)
In determining when we will pay your benefits to a representative payee, we follow the rules in § 404.2010(a) of this chapter.
For an explanation of the policy we use to determine what happens to your monthly benefits while we are finding a suitable representative payee for you, see § 404.2011 of this chapter.
We determine whether to pay your benefits to a representative payee after considering the information listed in § 404.2015 of this chapter.
To select a proper representative payee for you, we consider the information listed in § 404.2020 of this chapter.
We use the preference list in § 404.2021(a) of this chapter as a guide in selecting the proper representative payee for you.
For a list of individuals who may not serve as a representative payee,
Before selecting an individual or organization as your representative payee, we investigate him or her following the rules in § 404.2024 of this chapter.
Your representative payee must report to us information as described in § 404.2025 of this chapter.
(a) We notify you in writing of our determination to make representative payment. If you are legally incompetent, our written notice is sent to your legal guardian or legal representative. The notice explains that we have determined that representative payment is in your interest, and it provides the name of the representative payee we have selected. The notice:
(1) Contains language that is easily understandable to the reader.
(2) Identifies the person designated as your representative payee.
(3) Explains that you, your legal guardian, or your legal representative can appeal our determination that you need a representative payee.
(4) Explains that you, your legal guardian, or your legal representative can appeal our designation of a particular person to serve as representative payee.
(b) If you, your legal guardian, or your legal representative objects to representative payment or to the designated payee, you can file a formal appeal.
For a list of your representative payee's responsibilities, see § 404.2035 of this chapter.
Your representative payee must use your benefits in accordance with the rules in § 404.2040 of this chapter.
For the rules we follow to determine who is liable for repayment of misused benefits, see § 404.2041 of this chapter.
If your representative payee has accumulated benefits for you, he or she must conserve or invest them as provided in § 404.2045 of this chapter.
We follow the rules in § 404.2050 of this chapter to determine when we will select a new representative payee for you.
To determine when we will stop representative payment for you, we follow the rules in § 404.2055 of this chapter.
For a description of what happens to your accumulated funds (including the interest earned on the funds) when we change your representative payee or when you begin receiving benefits directly, see § 404.2060 of this chapter.
Your representative payee must account for the use of your benefits as specified in § 404.2065 of this chapter.
Secs. 702(a)(5), 1631(a)(2) and (d)(1) of the Social Security Act (42 U.S.C. 902(a)(5) and 1383(a)(2) and (d)(1)).
(a)
(1) If you are receiving disability payments and we have determined that you have a drug addiction or alcoholism condition, or you are legally incompetent, or you are under age 15, we will presume that substantial harm exists. However, we will allow you to rebut this presumption by presenting evidence that direct payment would not cause you substantial harm.
(2) If you do not fit any of these categories, we make findings of substantial harm on a case-by-case basis. We consider all matters that may affect your ability to manage your benefits in your own best interest. We decide that substantial harm exists if both of the following conditions exist:
(i) Directly receiving benefits can be expected to cause you serious physical or mental injury.
(ii) The possible effect of the injury would outweigh the effect of having no income to meet your basic needs.
(b)
(c)
(a) For beneficiaries 18 years old or older (except those described in paragraph (b) of this section), our preference is—
(b) For individuals who are disabled and who have a drug addiction or alcoholism condition our preference is—
(1) A community-based nonprofit social service agency licensed by the State, or bonded;
(2) A Federal, State or local government agency whose mission is to carry out income maintenance, social service, or health care-related activities;
(3) A State or local government agency with fiduciary responsibilities;
(4) A designee of an agency (other than a Federal agency) referred to in paragraphs (b)(1), (2), and (3) of this section, if appropriate; or
(5) A family member.
A representative payee applicant may not serve if he/she:
(a) Has been convicted of a violation under section 208, 811 or 1632 of the Social Security Act.
(b) Receives title II, VIII, or XVI benefits through a representative payee.
(c) Previously served as a representative payee and was found by us, or a court of competent jurisdiction, to have misused title II, VIII or XVI benefits. However, if we decide to make an exception to the prohibition, we must evaluate the payee's performance at least every 3 months until we are satisfied that the payee poses no risk to the beneficiary's best interest. Exceptions are made on a case-by-case basis if all of the following are true:
(1) Direct payment of benefits to the beneficiary is not in the beneficiary's best interest.
(2) No suitable alternative payee is available.
(3) Selecting the payee applicant as representative payee would be in the best interest of the beneficiary.
(4) The information we have indicates the applicant is now suitable to serve as a representative payee.
(5) The payee applicant has repaid the misused benefits or has a plan to repay them.
(d) Is a creditor. A creditor is someone who provides you with goods or services for consideration. This restriction does not apply to the creditor who poses no risk to you and whose financial relationship with you presents no substantial conflict of interest, and is any of the following:
(1) A relative living in the same household as you do.
(2) Your legal guardian or legal representative.
(3) A facility that is licensed or certified as a care facility under the law of a State or a political subdivision of a State.
(4) A qualified organization authorized to collect a monthly fee from you for expenses incurred in providing representative payee services for you, under § 416.640a.
(5) An administrator, owner, or employee of the facility in which you live and we are unable to locate an alternative representative payee.
(6) Any other individual we deem appropriate based on a written determination.
Before selecting an individual or organization to act as your representative payee, we will perform an investigation.
(a)
(1) Conduct a face-to-face interview with the payee applicant unless it is impracticable as explained in paragraph (b) of this section.
(2) Require the payee applicant to submit documented proof of identity, unless information establishing identity has recently been submitted with an application for title II, VIII or XVI benefits.
(3) Verify the payee applicant's Social Security account number or employer identification number.
(4) Determine whether the payee applicant has been convicted of a violation of section 208, 811 or 1632 of the Social Security Act.
(5) Determine whether the payee applicant has previously served as a representative payee and if any previous appointment as payee was revoked or terminated for misusing title II, VIII or XVI benefits.
(6) Use our records to verify the payee applicant's employment and/or direct receipt of title II, VIII, or XVI benefits.
(7) Verify the payee applicant's concern for the beneficiary with the beneficiary's custodian or other interested person.
(8) Require the payee applicant to provide adequate information showing his or her relationship to the beneficiary and to describe his or her responsibility for the care of the beneficiary.
(9) Determine whether the payee applicant is a creditor of the beneficiary (see § 416.622(d)).
(b)
Anytime after we select a representative payee for you, we may ask your payee to give us information showing a continuing relationship with you, a continuing responsibility for your care, and how he/she used the payments on your behalf. If your representative payee does not give us the requested information within a reasonable period of time, we may stop sending your benefit payment to him/her—unless we determine that he/she had a satisfactory reason for not meeting our request and we subsequently receive the requested information. If we decide to stop sending your benefit payment to your representative payee, we will consider paying you directly (in accordance with § 416.611) while we look for a new payee.
(a) We notify you in writing of our determination to make representative payment. This advance notice explains that we have determined that representative payment is in your interest, and it provides the name of the representative payee we have selected. We provide this notice before we actually appoint the payee. If you are under age 15, an unemancipated minor under the age of 18, or legally incompetent, our written notice goes to your legal guardian or legal representative. The advance notice:
(1) Contains language that is easily understandable to the reader.
(2) Identifies the person designated as your representative payee.
(3) Explains that you, your legal guardian, or your legal representative can appeal our determination that you need a representative payee.
(4) Explains that you, your legal guardian, or your legal representative can appeal our designation of a particular person to serve as your representative payee.
(5) Explains that you, your legal guardian, or your legal representative can review the evidence upon which our designation of a particular representative payee is based and submit additional evidence.
(b) If you, your legal guardian, or your legal representative objects to representative payment or to the designated payee, we will handle the objection as follows:
(1) If you disagree with the decision and wish to file an appeal, we will process it under subpart N of this part.
(2) If you received your advance notice by mail and you protest or file your appeal within 10 days after you receive the notice, we will delay the action until we make a decision on your protest or appeal. (If you received and signed your notice while you were in the local field office, our decision will be effective immediately.)
(a)
(1) Any State or local government agency with fiduciary responsibilities or whose mission is to carry out income maintenance, social service, or health care-related activities; or
(2) Any community-based nonprofit social service organization founded for religious, charitable or social welfare purposes, that is tax exempt under section 50l(c) of the Internal Revenue Code and that is licensed in the State in which it serves as representative payee or bonded.
(b)
(1) A qualified organization must regularly provide representative payee services concurrently to at least five beneficiaries. An organization which has received our authorization to collect a fee for representative payee services, but is temporarily (not more than 6 months) not a payee for at least five beneficiaries, may request our approval to continue to collect fees.
(2) A qualified organization must demonstrate that it is not a creditor of the beneficiary. See paragraph (c) of this section for exceptions to the requirement regarding creditors.
(c)
(1) The creditor services (
(2) The amount the organization charges the beneficiary for these services is commensurate with the beneficiary's ability to pay.
(d)
(2) An organization seeking authorization to collect a fee must also give us evidence to show that it is qualified, pursuant to paragraphs (a), (b), and (c) of this section, to collect a fee.
(3) If the evidence provided to us by the organization shows that it meets the requirements of this section, and additional investigation by us proves it suitable to serve, we will notify the organization in writing that it is authorized to collect a fee. If we need more evidence, or if we are not able to authorize the collection of a fee, we will also notify the organization in writing that we have not authorized the collection of a fee.
(e)
(2) An organization may cancel its authorization at any time upon written notice to us.
(f)
(g)
(2) Any agreement providing for a fee in excess of the amount permitted shall be void and treated as misuse of your benefits by the organization under § 416.641.
(3) A fee may be collected for any month during which the organization—
(i) Provides representative payee services;
(ii) Receives a benefit payment for the beneficiary; and
(iii) Is authorized to receive a fee for representative payee services.
(4) Fees for services may not be taken from any funds conserved for the beneficiary by a payee in accordance with § 416.645.
(5) Generally, an organization may not collect a fee for months in which it does not receive a benefit payment. However, an organization will be allowed to collect a fee for months in which it did not receive a payment if we later issue payment for these months and the organization:
(i) Received our approval to collect a fee for the months for which payment is made;
(ii) Provided payee services in the months for which payment is made; and
(iii) Was the payee when the retroactive payment was paid by us.
(6) An authorized organization can collect a fee for providing representative payee services from another source if the total amount of the fee collected from both the beneficiary and the other source does not exceed the amount authorized by us.
(a) A representative payee who misuses your benefits is responsible for paying back misused benefits. We will make every reasonable effort to obtain restitution of misused benefits so that we can repay these benefits to you.
(b) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that a representative payee misused benefits and the representative payee is an organization or an individual payee serving 15 or more beneficiaries. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you.
(c) Whether or not we have obtained restitution form the misuser, we will repay benefits in cases when we determine that an individual representative payee serving 14 or fewer beneficiaries misused benefits and our negligent failure in the investigation or monitoring of that representative payee results in the misuse. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you.
(d) The term “negligent failure” used in this subpart means that we failed to investigate or monitor a representative payee or that we did investigate or monitor a representative payee but did not follow established procedures in our investigation or monitoring. Examples of our negligent failure include, but are not limited to, the following:
(1) We did not follow our established procedures in this subpart when investigating, appointing, or monitoring a representative payee;
(2) We did not investigate timely a reported allegation of misuse; or
(3) We did not take the steps necessary to prevent the issuance of payments to the representative payee after it was determined that the payee misused benefits.
(e) Our repayment of misused benefits under these provisions does not alter the representative payee's liability and responsibility as described in paragraph (a) of this section.
When we learn that your interest is not served by sending your benefit payment to your present representative payee or that your present payee is no longer able or willing to carry out payee responsibilities, we will promptly stop sending your payment to the payee. We will then send your benefit payment to an alternative payee or directly to you, until we find a suitable payee. We may suspend payment as explained in § 416.611(c) if we find that paying you directly would cause substantial harm and we cannot find a suitable alternative representative payee before your next payment is due. We will terminate payment of benefits to your representative payee and find a new payee or pay you directly if the present payee:
(a) Has been found by us or a court of competent jurisdiction to have misused your benefits;
(b) Has not used the benefit payments on your behalf in accordance with the guidelines in this subpart;
(c) Has not carried out the other responsibilities described in this subpart;
(d) Dies;
(e) No longer wishes to be your payee;
(f) Is unable to manage your benefit payments; or
(g) Fails to cooperate, within a reasonable time, in providing evidence, accounting, or other information we request.
A representative payee must account for the use of benefits. We require written reports from your representative payee no less than annually (except for certain State institutions which participate in a separate onsite review program). We may verify how your representative payee used the funds. Your representative payee should keep records of how benefits were used in order to make accounting reports and make those records available upon our request. We may ask your representative payee to give us the following information:
(a) Where you lived during the accounting period;
(b) Who made the decisions on how your benefits were spent or saved;
(c) How your benefit payments were used; and
(d) How much of your benefit payments were saved and how the savings were invested.
Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383(b)); 31 U.S.C. 3720A.
(d) Whether the payment of your benefits will be made, on your behalf, to a representative payee;
(o) Whether we were negligent in investigating or monitoring or failing to investigate or monitor your representative payee, which resulted in the misuse of benefits by your representative payee.
Centers for Medicare & Medicaid Services (CMS), HHS.
Correction of final rule.
This document corrects technical errors in the final rule that appeared in the August 11, 2004
Effective October 1, 2004.
James Hart, (410) 786-4548.
In FR Doc. 04-17943 (69 FR 48916, August 11, 2004), the final rule entitled “Medicare Program; Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2005 Rates” (hereinafter referred to as the FY 2005 final rule) there were a number of technical errors that are identified and corrected in section III of this correction notice. The provisions in this correction notice are effective as if they had been included in the FY 2005 final rule. Accordingly, the corrections are effective on October 1, 2004.
This correction notice makes a number of changes to the FY 2005 final rule. Because of the number of corrections and the length of some of these corrections, we are providing a summary of the major corrections contained within this notice.
On page 49022, in the summary of a public comment concerning the application for new technology add-on payments for the Intramedullary Skeletal Kinetic Distractor (ISKD), we did not accurately describe the issues raised by the applicant. Accordingly, in this correction notice, we are revising the summary of this comment to reflect more accurately the comment submitted. (See section III, item 11 of this notice.)
On page 49061, we inadvertently omitted a comment and response with respect to geographic reclassifications under section 508 of Public Law 108-173. However, we note that the comment was considered before finalization of our policy. (
On pages 49070 through 49075, we discuss our postacute care transfer payment policy. In this discussion, we inadvertently omitted several comments and responses from this section. However, we note that we did consider these comments before we finalized our policy. Several comments were related to the proposal to include DRG 430 in the policy under the proposed alternate criteria (which we did not adopt in the final rule). Many others raised arguments that CMS has responded to in the past, but which these commenters raised again in response to the FY 2005 proposed rule (69 FR 28196). In addition, we inadvertently omitted from the final rule a summation of and our response to a comment relating to the postacute care transfer policy that was outside the scope of the proposed rule.
In the interests of clarity and convenience, we are reprinting the discussion of comments on this section in its entirety, including all comments that were inadvertently omitted from the final rule, as well as appropriate responses to those comments. (See items 14 and 15 in section III of this notice.)
On page 49105, we inadvertently omitted portions of our policy discussion with respect to our decision to make an exception for hospitals that failed to reclassify as an urban group under 42 CFR 412.234. On page 49107, we also inadvertently omitted part of our policy discussion with respect to the special circumstances of sole community hospitals in low population density States. In addition, on page 49249, there were technical and typographical errors in two sections (§ 412.230 and § 412.232) of the regulations text regarding criteria for hospitals seeking redesignation. We note that one of the errors was a result of not revising the timeframe in § 412.230(d)(3)(iii)(B) in conjunction with adding a new provision in § 412.230(d)(3)(iii)(C). (See items 18, 19, 21, and 43 in section III of this notice.)
On page 49090, we inadvertently duplicated a comment and response that were appropriately included on page 49155 of the FY 2005 final rule. Also on pages 49130 through 49132, we inadvertently omitted clarifications to the preamble discussion of our policy regarding the treatment of hospitals that are members of the same affiliated group as of July 1, 2003, under section 1886(h)(7)(A)(iii) of the Act for the purposes of payment adjustments for indirect medical education (IME) and graduate medical education (GME) costs. In addition, on page 49132, we inadvertently omitted clarifications to the preamble discussion of our policies regarding the criteria for determining hospitals that will receive increases to their FTE resident caps under section 1886(h)(7)(B) of the Act. In section III of this notice we correct these errors (see section III items 16, 25, and 26 of this notice).
On pages 49221, 49224, and 49271, we made technical errors in our preamble discussion and regulatory text regarding the grandfathering of certain critical access hospitals (CAHs) due to the new metropolitan statistical areas (MSA) definitions for the geographic classification of hospitals. As a result, we are making corrections to two dates and removing an erroneous paragraph of regulations text. (
On page 49240, we made a technical error in the regulations text of § 412.22(e)(1) regarding hospitals-within-hospitals. In this paragraph, we erroneously stated the timeframe for which the provision is applicable. (
On page 49250, in the regulatory text changes for § 412.312(e)(3), we incorrectly cited the cross-reference to the offsetting amounts established for extraordinary circumstances exception payments under the capital-related costs under IPPS. As we had indicated in the preamble to the final rule (69 FR 49185 and 49186), the correct cross-reference in both cases in the regulatory text should have been § 412.348(e). (See section III. item 44 of this notice.)
On page 49290, we incorrectly stated the FY 2005 special capital rate for Puerto Rico as $199.02. Consistent with the capital rate for Puerto Rico that was stated in Table 1D in the Addendum of the final rule (69 FR 49294), the rate in the narrative of the Addendum should have been $199.01. (See section III. item 50 of this notice.)
On pages 49738 through 49754, in Table 11-FY 2005 LTC-DRGs, Relative Weights, Geometric Average Length of Stay, and
We are also correcting typographic, formatting, or other errors that appear on other pages of the FY 2005 final rule, as cited in section III. of this notice.
We made technical errors in the tables related to the wage indexes, geographic reclassifications, and IPPS payment rates. In section IV. of this notice, we discuss these errors in detail. However, we are posting the corrected tables on the CMS Web site and will issue a separate
In FR Doc. 04-17943 (69 FR 48916), make the following corrections:
1. On page 48928, second column, lines 39 through 43, the sentence “The proposed restructured DRG 103 included any principal diagnosis in MDC 5, plus one of the following surgical procedure codes:” is corrected to read “The proposed restructured DRG 103 is procedure-driven and not based on any specific principal diagnosis. Assignment to DRG 103 will be based on one of the following surgical procedure codes:”
2. On page 48938, second column, at the end of line 42 and before line 43, add the following sentence: “We are also assigning code 84.59 and codes 84.60 through 84.69 to the following DRGs as discussed above and shown in Table 6B: MDC 1, DRGs 531-532; MDC 21, DRGs 442-443; MDC 24, DRG 486.”
3. On page 48952, first column, lines 10 through 26, these lines are deleted and the following new text in their place:
“The logic for DRG 315 is modified as follows:
This list remains the same as V21.0 of the GROUPER
OR
Principal diagnosis of renal failure from DRG 315
AND
86.07, Insertion of totally implantable vascular access device [VAD]
OR
Principal Diagnosis
250.41, Diabetes with renal manifestations, type 1, [insulin dependent type] [IDDM] [juvenile type], not stated as uncontrolled
250.43, Diabetes with renal manifestations, type 1, [insulin dependent type] [IDDM] [juvenile type], uncontrolled
AND
52.84, Autotransplantation of cells of islets of Langerhans
52.85, Allotransplantation of cells of islets of Langerhans”.
4. On page 48975, second column, line 56, the term “diotrecogin” is corrected to read “drotrecogin”.
5. On page 48976, first column, line 3, the term “diotrecogin” is corrected to read “drotrecogin”.
6. On page 49002, second column,
a. Lines 2 through 5, the sentence “The comment regarding the DRG assignment of the treatment for AIP is addressed in section II.B.16.i. of this final rule.” is deleted.
b. Line 45, the cross-reference “section II.B.16.c.” is corrected to read “section II.B.16.d.”; and
c. Line 48, the cross-reference “section II.B.16.i.” is corrected to read “section II.B.16.j.”.
7. On page 49003, second column, lines 42, the term “begins” is corrected to read “begin”.
8. On page 49008,
a. First column,
(1) Line 6, the date “July 2, 2003” is corrected to read “July 2, 2002”.
(2) After line 63 insert the following paragraph “We are finalizing that proposal in this final rule.”
b. Second column, lines 5 and 6, the paragraph “We are finalizing that proposal in this final rule” is deleted.
9. On page 49009, third column, lines 61 through 64, the phrase “(Craniotomy with implantation of chemotherapeutic agent or acute complex central nervous system principle diagnosis) to which Gliadel cases will be assigned.” is corrected to read “(Craniotomy with Implantation of Chemotherapeutic Agent or Acute Complex Central Nervous System Principal Diagnosis) to which cases involving GLIADEL® will be assigned.”
10. On page 49018, second column, line 63, the phrase “stated that that based” is corrected to read “stated that based”.
11. On page 49022, first column, lines 22 through 55, the paragraph beginning with the phrase “Comment: The applicant noted that it” is corrected to read:
“
12. On page 49028, second column, line 35, the term “OMB” is corrected to read “Census”.
13. On page 49061, second column, after line 25 and before line 26 insert the following 2 paragraphs:
“
“
14. On page 49072, third column, line 33, the phrase “postacute transfer policy” is corrected to read “postacute care transfer policy”.
15. On pages 49073 through 49075 the text beginning on page 49073, first column, first full paragraph and ending on page 49075, first column, fourth full paragraph, is revised to read as follows:
“
“Some commenters objected to the method by which we proposed the change in the criteria for DRGs to qualify to be included in the postacute transfer policy. They argued that CMS should have proposed the criteria and accepted comment on the alternate criteria and made appropriate changes based on those comments before applying them to any additional DRGs. The commenters were concerned that CMS had seemingly arbitrarily created the alternate set of criteria and applied them to new DRGs in the same rule. Many commenters also noted that CMS did not provide enough evidence or substantial analysis to warrant such a change in policy prior to proposing the alternate criteria and proposing to apply them. Commenters argued that no analysis has been done to determine the impacts of last year's changes to the criteria for the postacute care transfer policy and that to alter the criteria again the following year, without any analysis of last year's changes, would be premature.
“Several commenters took issue with changes to the DRG system having impacts on the postacute care transfer policy. One commenter stated that, from a clinical perspective, many of the tracheostomy patients can be ‘weaned’ from the ventilator, and the highest success rate occurs when the patients are moved ‘in an expedient fashion’ to postacute care settings where ‘weaning protocols can be applied.’ Other commenters asked CMS to recognize that ‘there is no other institute to transfer these [tracheostomy] patients to’ and that ‘acute hospitals are the only settings in which they can be cared for.’ One commenter stated that the different case weights of the new DRGs may have significant financial impacts on providers and that we should reconsider the assignment of these new DRGs in the policy until sufficient data are available to determine if they would meet the existing criteria for inclusion in the policy.
“Some commenters recognized the need to develop an ‘alternative method for historic, qualifying transfer DRGs that are eliminated and remapped into another existing DRG and/or split into two new DRGs due to annual coding changes or DRG service refinements’ to be included in the postacute care transfer policy. However, they still objected to the use of the proposed alternate criteria when the first set of criteria are not met and recommended, as a compromise, that CMS adopt the use of the alternate criteria only when: (1) Cases in an existing DRG are remapped or split into two new DRGs, as is the situation with DRG 483; (2) these cases would remain subject to the postacute care transfer policy during a ‘transitional year’; (3) the existing criteria would apply at the end of this ‘transitional year’; and (4) the individual codes or sets of ICD-9-CM diagnosis or procedure codes that are remapped would not automatically qualify the new DRGs for inclusion in the postacute care transfer policy unless such mapping would result in all cases within the new DRG(s) qualifying under the existing criteria. This approach would exclude the criterion that the DRG(s) meet these criteria for both of the two most recent fiscal years, as the new DRG(s) would not have been in existence, and could not have met the criteria in those years.
“
“However, in light of these and other comments, we are not adopting the proposed alternate criteria in this final rule. We note that the postacute care transfer policy was not considered at the time the decision was made to split DRG 483. We do not intend to change our rationale for reorganizing DRGs into more coherent groups or to compromise the clinical cohesiveness of the DRG system in order to ensure cases are included in or excluded from the postacute care transfer policy or other CMS policies. We have discussed the reasons for splitting DRG 483 in section II.B.9. of the proposed rule and in this final rule. However, we do note that, while these cases will continue to be
“We also note that, if acute care settings are the only appropriate place that tracheostomy patients can receive proper care, as reported by one commenter, then DRG 483 into which these claims fall would not have a high percentage of short-stay transfers (they currently account for 42 percent of all transfer cases in this DRG), and it would not have been included in the postacute care transfer policy. This commenter's statement is also contrary to another commenter's statement that we summarized, which stated that the appropriate place for these patients to be weaned from ventilators is at postacute care facilities. Lastly, since the postacute care transfer policy was implemented in FY 1999, we have accumulated 5 years' worth of data containing these cases. These data show that these cases are appropriate candidates for the postacute care transfer policy.
“
“Commenters also argued that the policy should be repealed in its entirety, rather than expanded, because it creates a perverse incentive for hospitals to keep patients longer and to deny them appropriate care in postacute care facilities when it is needed. Many commenters also argued that CMS has failed to provide analysis showing the continued need for the postacute care transfer policy, much less the need to expand it, especially considering that the majority of postacute care facilities are now paid for in their own prospective payment systems. Commenters continued to argue that ‘CMS has presented no evidence that hospitals are discharging patients before they are ready.'
“
“
“
“
“
“However, due to the large number of comments received and the strong arguments they have raised in favor of a more straightforward approach, we have decided not to adopt the alternate criteria proposed in the May 18, 2004 proposed rule. Instead, in this final rule, we are adopting the policy of simply grandfathering, for a period of 2 years, any cases that were previously included within a DRG that has split, when the split DRG qualified for inclusion in the postacute care transfer policy for both of the previous 2 years. Under this policy, the cases that were previously assigned to DRG 483, and that will now fall into DRGs 541 and 542, will continue to be subject to the postacute care transfer policy for the next 2 years. We will monitor the frequency with which these cases are transferred to postacute care settings and the percentage of these cases that are short-stay transfer cases. Because we are not adopting the proposed alternate criteria for DRG inclusion in the postacute care transfer policy at this time, DRG 430 (Psychoses) does not meet the criteria for inclusion and will not be subject to the postacute care transfer policy for FY 2005.
“We appreciate the recommendation to address situations such as the splitting of DRGs by simply including all cases within the postacute care transfer policy permanently once they have initially qualified. While we are not adopting this policy at this time, we will actively consider it for adoption at a later date. Meanwhile, we believe that grandfathering the cases formerly included in DRG 483 for 2 years is an appropriate interim measure that ensures a consistent payment approach to these cases while affording us sufficient time to undertake a thorough review of this issue. In the meantime, we welcome comments on how to treat the cases formerly included in a split DRG after the grandfathering period. We note that, if we were to adopt the policy recommended by the commenter, cases in DRGs 263 and 264 would again become subject to the policy. As noted above, these DRGs are already very close to meeting the criteria required to be re-included in the policy. However, we will monitor cases until next year or until such time that another change to this policy is warranted.
“
“
“The table below displays the 30 DRGs that we are including in the postacute care transfer policy, effective for discharges occurring on or after October 1, 2004. This table includes the effects of dropping DRG 483, which we are deleting from the DRG list, and adding the two new DRGs 541 and 542 that will now incorporate the cases formerly assigned to DRG 483. As discussed above, these cases are being grandfathered into the policy for 2 years. The other DRGs meet the criteria specified above during both of the 2 most recent years for which data were available prior to the publication of this final rule (FYs 2002 and 2003), as well as their paired-DRG if one of the DRGs meeting the criteria includes a CC/no-CC split.
“Section 1886(d)(5)(J)(i) of the Act recognizes that, in some cases, a substantial portion of the costs of care is incurred in the early days of the inpatient stay. Similar to the policy for transfers between two acute care hospitals, the transferring hospital in a postacute care transfer receives twice the per diem rate for the first day of treatment and the per diem rate for each following day of the stay before the transfer, up to the full DRG payment. However, three of the DRGs subject to the postacute care transfer policy exhibit a disproportionate share of costs very early in the hospital stay in postacute care transfer situations. For these DRGs, hospitals receive 50 percent of the full DRG payment plus the single per diem (rather than double the per diem) for the first day of the stay and 50 percent of the per diem for the remaining days of the stay, up to the full DRG payment.
“In previous years, we determined that DRGs 209 and 211 met this cost threshold and qualified to receive this special payment methodology. Because DRG 210 is paired with DRG 211, we include payment for cases in that DRG for the same reason we include paired DRGs in the postacute care transfer policy (to eliminate any incentive to code incorrectly in order to receive higher payment for those cases). The FY 2003 MedPAR data show that DRGs 209 and 211 continue to have charges on the first day of the stay that are higher than 50 percent of the average charges in the DRGs. Therefore, we proposed to continue the special payment methodology for DRGs 209, 210, and 211 for FY 2005 (69 FR 28274).
“We received no comments on this proposal. Therefore, we will continue the special payment methodology for these DRGs in FY 2005.
“
“
“
“
16. On page 49090, first column, lines 4 through 45, the lines are deleted.
17. On page 49103, third column, lines 46 through 58, the two sentences “In light of its concerns, the commenter recommends that CMS establish a separate exception for major rural teaching hospitals by revising § 412.230 to add two provisions. The commenter believes that adoption of the suggested rules would allow a major teaching hospital to reclassify to an MSA where a substantial number of its competing hospitals are located within the same census region, thus affording them the flexibility to reclassify to an appropriate MSA.” are corrected to read “In light of its concerns, the commenter recommends that CMS establish a separate exception for major rural teaching hospitals by revising § 412.230 to eliminate the proximity requirement for rural, major teaching hospitals who seek reclassification to a large urban area within their census region that includes 5 or more major teaching hospitals. The commenter also recommended elimination of the wage comparability test of § 412.230(e)(1)(iii) for rural hospitals that were major teaching hospitals as of September 30, 2004.”.
18. On page 49104,
a. First column,
(1) Line 48, the phrase “proximity criteria because” is corrected to read “proximity criteria in § 412.230(b) because”;
(2) Line 55, after the parenthetical phrase “(§ 412.230(a)(3))”, insert the following phrase “and will generally be reclassified to the urban area closest to the hospital”; and
(3) Lines 55 through 58, the sentence “In addition, rural referral centers (and SCHs) may also reclassify to any MSA to which they qualify under § 412.230(b).” is corrected to read “In the alternative, RRCs (and SCHs) also have the opportunity to meet the proximity criteria of § 412.230(b) and seek reclassification to an area for which they met the proximity rules.”.
b. Second column,
(1) Line 4, preceding the sentence that begins “Therefore we are not” insert the following sentence:
“We note that under § 412.230(e)(3), RRCs are already exempt from the criterion in § 412.230(e)(1)(iii) regarding the average hourly wage.”.
(2) Lines 27 through 33, the sentence “In keeping with the proposal to define labor market areas as MSAs, including those in New England, the criteria and conditions for redesignation set forth in § 412.230 will be applicable to New England hospitals seeking to reclassify.” is corrected to read “In keeping with our policy of defining labor market areas as MSAs, including those in New England, the criteria and conditions for redesignation set forth in § 412.230 will be applicable to individual New England hospitals seeking to reclassify and the conditions for reclassification as a group set forth in § 412.234 will be applicable to New England hospitals seeking to reclassify as a group.”.
(3) Lines 56 through 58, the phrase “we believe it would be appropriate to make an adjustment to the hospital's wage index by assigning,” is corrected to read “we proposed to make an adjustment to certain hospitals’ wage indexes by assigning,”.
c. Third column,
(1) Line 10, the phrase “failed to reclassify” is corrected to read “applied but failed to reclassify”;
(2) Line 15, the phrase “any hospital whose” is corrected to read “we proposed that any hospital whose”;
(3) Line 27, the phrase “wish to” is corrected to read “wished to”; and
(4) Lines 35 through 48, the text beginning with the phrase “We further stated that the notification should only contain:” and ending with the phrase “and FY 2005.” is corrected by deleting that text; and
(5) Lines 60 through 68, the two sentences “We proposed to exercise the Secretary's authority to provide for ‘exceptions and adjustments’ to payments under the IPPS. To assign a different wage index to a group of hospitals that were unable to reclassify because of a reclassification criterion that is no longer appropriate due to a statutory change.” is corrected to read “We proposed to exercise the Secretary's authority to provide for ‘exceptions and adjustments’ to payments under the IPPS to assign a different wage index to a group of hospitals that applied but were unable to reclassify solely because of a reclassification criterion that is no longer appropriate due to a statutory change.”
19. On page 49105,
a. First column,
(1) After line 12 and before line 13, insert the following paragraph:
“By providing relief only to hospitals that applied but failed to reclassify as a group under § 412.234 for FYs 2004 and 2005, we are applying meaningful limits to the scope of the exception. We are limiting our relief only to hospitals who previously demonstrated the intent to reclassify and met all of the criteria for group reclassification but not for the standardized amount reclassification criterion under § 412.234(c). Moreover, hospitals that submitted a group application specified their preferences regarding the MSA or MSAs to which they sought to be reclassified and in this final rule we are allowing hospitals that qualify under this exception to reclassify only to the MSA or MSAs specified in the previously submitted group application. By limiting the exception in this way, hospitals that had no intent to reclassify in the past will be prevented from submitting an application for reclassification now based on the reconfiguration of the MSAs. We note that we did not receive any comments regarding our decision to limit the scope of the exception to hospitals that had previously submitted a group application for reclassification.”; and
(2) Lines 15 through 18, the phrase “hospitals that were unable to reclassify as a group solely because they failed to meet the standardized amount criterion in either FY 2004 or FY 2005.” is corrected to read “hospitals with failed applications for either FY 2004 or FY 2005.”;
(3) After line 68, add the following three sentences: “We believe these criteria are reasonable because the hospitals that failed to reclassify are required to compete in their counties with a high number of hospitals that were successful in reclassifying and who may be able to pay significantly higher wages because of their higher indexes. In addition, these hospitals applied for reclassification for FY 2004 or FY 2005 but failed to receive it solely on the basis of a criterion that no longer exists due to changes in the statute. (Since reclassification lasts for a 3-year period, we have allowed hospitals that sought group reclassification for either FY 2004 or FY 2005, and who also meet all of the other criteria above, to receive this special exception.)”.
b. Third column, lines 1 through 8, the phrase “that are, under the new MSA designations and the same CMSA under the former MSA designations qualify as meeting the proximity requirement for reclassification to the urban area to which they seek redesignation.” ’ is corrected to read “that are in the same Combined Statistical Area (CSA) (under the MSA definitions announced by the OMB on June 6, 2003); or in the same Consolidated Metropolitan Statistical Area (CMSA) under the standards published by the OMB on March 30, 1990) as the urban area to which they seek redesignation qualify as meeting the proximity requirement for reclassification to the urban area to which they seek redesignation.” ’.
20. On page 49106, second column,
(a) Line 57, the phrase “adjacency and” is deleted;
(b) Lines 58 and 59, the phrase “§ 412.230(a)(2) therefore, “ is corrected to read “§ 412.230(a)(2). Therefore, “; and
(c) Line 62, after the phrase “to reclassify.” insert the following sentence: “However, RRCs and SCHs, if they wish to, can —in the alternative— seek reclassification to an area for which they can demonstrate close proximity under § 412.230(b).”.
21. On page 49107, third column, line 66, after the phrase “is warranted.” insert the following 2 sentences: “In addition, given that many of the hospitals in the low population density States were already reclassified in accordance with section 508 of Pub. L. 108-173, we believe it is reasonable to ensure that the SCHs that were not reclassified are not put at a significant disadvantage. Hospitals that were not in the low-population density States identified in the section 508 notice will not suffer the same competitive disadvantage vis-à-vis other hospitals in their State.”
22. On page 49108, first column,
a. Line 30, the phrase “hospitals in the area.” is corrected to read “hospitals in the area (not including the hospital itself).”; and
b. Line 37, the phrase “hospitals in the area.” is corrected to read “hospitals in the area (not including the hospital itself).”.
23. On page 49115, first column, line 4, the phrase “with less than 250 beds” is corrected to read “has less than 250 beds”.
24. On page 49116, third column,
a. Line 2, the phrase “that lent financial support to the subject” is corrected to read “to lend financial support to the distressed”.
b. Lines 3 through 20, the four sentences “A formal merger between the two hospitals has been opposed by the state's Attorney General. The subject hospital's residency programs have not grown to the level maintained prior to the petition for closure and the hospital was training residents well below its FTE resident cap during the reference
25. On page 49130,
a. First column, entire columns (lines 1 through 64) the text beginning with the phrase “regarding affiliated groups (63 FR 26338)” and ending with the phrase “basis, a hospital had trained fewer” is corrected to read “regarding affiliated groups at §§ 413.86(b) and (g)(4)(iv), (also described at 63 FR 26338, May 12, 1998), we note that a single hospital could have several Medicare GME affiliation agreements with several different ‘affiliated groups.’ However, for purposes of applying the provision at section 1886(h)(7)(A)(iii) of Act, we will use a broader definition of the affiliated group. Specifically, for purposes of comparing aggregate FTE resident caps to aggregate FTE counts, we will include every hospital that has an affiliation agreement (as of July 1, 2003) in common with any other hospital (the commonly affiliated group). Then, for direct GME and IME respectively, the fiscal intermediaries will identify the ‘1996’ FTE resident caps (subject to permanent adjustments for new programs, if applicable), and the unweighted allopathic and osteopathic FTE resident counts for each hospital that is part of that commonly affiliated group for each affiliated hospital's cost report that includes July 1, 2003. (Note that since the 1996 cap and FTE count information from the cost report that includes July 1, 2003 is being used for purposes of section 1886(h)(7)(iii) of the Act, the caps as amended in accordance with the July 1, 2003 affiliation agreement are irrelevant for this portion of the analysis). In many cases, the hospitals in the commonly affiliated group will not all have the same fiscal year end (FYE). Therefore, for example, for a hospital with a FYE of June 30, the fiscal intermediary will identify the FTE resident cap (that is, the ‘1996’ cap, subject to permanent adjustments for new programs, if applicable) and the unweighted allopathic and osteopathic FTE resident count from the hospital's FYE June 30, 2004 cost report. For a hospital with a FYE of December 31, the fiscal intermediary will identify, for IME and direct GME, respectively, the FTE resident cap (that is, the ‘1996’ cap, subject to permanent adjustments for new programs, if applicable) and the unweighted allopathic and osteopathic FTE resident count from the hospital's FYE December 31, 2003 cost report. Next, the fiscal intermediary will add the FTE resident caps for all the hospitals in the commonly affiliated group to determine the aggregate FTE resident cap, and will add the FTE resident counts from all those hospitals' cost reports that include July 1, 2003, to determine the aggregate FTE resident count for the commonly affiliated group. If the aggregate FTE resident count for the commonly affiliated group is equal to or exceeds the aggregate FTE resident cap, then no reductions would be made under section 1886(h)(7)(A)(i) of the Act to the FTE resident caps of any of the hospitals in the commonly affiliated group. Each hospital's FTE resident cap would not be reduced effective July 1, 2005, even if, on a hospital-specific basis, a hospital trained fewer”;
b. Second column, the entire column (lines 1 through 63), the text beginning with the phrase “residents in its cost report that includes” and ending with the figure “3.04.” is corrected to read “residents in its cost reporting period that includes July 1, 2003, than its adjusted ‘affiliated’ cap. However, if the aggregate FTE resident count for the commonly affiliated group is below its aggregate FTE resident cap, there would be a reduction in FTE resident cap(s) that is equal to 75 percent of the difference between the aggregate FTE resident cap and the aggregate FTE resident count for the commonly affiliated group. In these cases, for each hospital in the commonly affiliated group, the fiscal intermediary will determine the following information for the cost report that includes July 1, 2003:
(1) The individual hospital's ‘1996’ FTE resident cap (subject to permanent adjustments for new programs, if applicable)—for IME from worksheet E, Part A of the Medicare cost report, the sum of lines 3.04 and 3.05; for direct GME from worksheet E-3, Part IV of the Medicare cost report, the sum of lines 3.01 and 3.02.
(2) The individual hospital's ‘affiliated’ FTE resident cap—for IME, line 3.07 of worksheet E, Part A; for direct GME, line 3.04 of worksheet E-3 Part IV.
(3) The individual hospital's total number of allopathic and osteopathic FTE residents—for IME, line 3.08; for direct GME, line 3.05.
(4) For IME and GME, respectively, the difference between the aggregate 1996 FTE resident cap and the aggregate FTE resident count for all of the commonly affiliated hospitals—for IME, Σ line 3.08 minus Σ (lines 3.04 + 3.05); for direct GME, Σ line 3.05 minus Σ (lines 3.01 + 3.02). Note, if the aggregate FTE resident count is greater than or equal to the aggregate 1996 FTE resident cap, stop here; there will be no reduction under section 1886(h)(7)(A)(i) of the Act to the FTE resident cap of any individual hospital within the commonly affiliated group. Alternatively, if the aggregate FTE resident count is less than the aggregate 1996 FTE resident cap, the aggregate reduction under section 1886(h)(7)(A)(i) of the Act to the FTE resident caps for hospitals in the commonly affiliated group will be based on this calculation; reductions to individual hospitals are calculated as indicated below.
(5) For IME, for those hospitals whose FTE resident count from line 3.08 is greater than or equal to the ‘affiliated’ FTE resident cap on line 3.07, indicate ’zero.’ For direct GME, for those hospitals whose FTE resident count from line 3.05 is greater than or equal to the “affiliated” FTE resident cap on line 3.04, indicate ‘zero.’ For IME, for those hospitals whose FTE resident count from line 3.08 is less than the ‘affiliated’ FTE resident cap on line 3.07, calculate the difference between the hospital's ‘affiliated’ FTE resident cap and the hospital's FTE resident count—line 3.08 minus line 3.07. For direct GME, for those hospitals whose FTE resident count from line 3.05 is less than the ‘affiliated’ FTE resident cap on line 3.04, calculate the difference between the hospital's ‘affiliated’ FTE resident cap and the hospital's FTE resident count—line 3.05 minus line 3.04.
c. Third column, the entire column (lines 1 through 63), the text beginning with the phrase “(6) For IME and direct GME” and ending with the phrase “table below.” is corrected to read as follows:
“(6) For IME and direct GME, respectively, determine the total amount by which the aggregate ‘affiliated’ FTE resident count for the commonly affiliated group is below the aggregate FTE resident cap for the group by adding together the amounts determined for each hospital under step 5.
“(7) For IME and direct GME, respectively, calculate a pro rata cap reduction for each hospital by dividing the hospital-specific amount calculated in step 5 by the total for all of the commonly affiliated hospitals calculated in step 6, and multiply by the total amount calculated in step 4 (that is, (step 5/step 6) × step 4)).
“(8) For IME and direct GME, respectively, determine the reduction to the FTE resident cap for each hospital under section 1886(h)(7)(A)(i) of the Act by multiplying the pro rata cap reduction from step 7 by 0.75.
“(9) For IME and direct GME, respectively, determine the FTE resident cap for each hospital by subtracting the reduction to the FTE resident cap calculated in step 8 from the ‘1996’ FTE resident cap in step 1. This is the hospital's FTE resident cap effective July 1, 2005.
“The following is an example of how the reductions to the FTE resident caps will be determined where the aggregate FTE resident counts for hospitals in a commonly affiliated group as of July 1, 2003 are below the hospitals' aggregate FTE resident caps for the hospitals' cost reporting periods that include July 1, 2003. (This example illustrates reductions to the IME caps only, but the methodology is the same for reductions to the direct GME caps):
“Hospitals A, B, and C are affiliated for the academic year beginning July 1, 2003. Hospital C is also affiliated with Hospitals D and E for the academic year beginning July 1, 2003. Thus, the commonly affiliated group for purposes of determining possible FTE cap reductions under section 1886(h)(7)(A)(iii) of the Act consists of Hospitals A, B, C, D, and E. Hospital A's and B's cost report that includes July 1, 2003 is their FYE June 30, 2004. Hospital C's and D's cost report that includes July 1, 2003 is their FYE December 31, 2003, and Hospital E's cost report that includes July 1, 2003 is its FYE September 30, 2003. Using steps 1 through 9 above, the reductions to the FTE resident caps of those hospitals in the affiliated group that trained a number of FTE residents in their cost reporting period that includes July 1, 2003, that is below their ‘affiliated' FTE resident caps are determined in the table below.”
26. On page 49131,
a. First column,
(1) Lines 1 and 2, the phrase “trained residents” is corrected to read “trained a number of residents”;
(2) Lines 16 through 18, the phrase “minimizes the reductions to Hospital D's and E's ‘1996’ FTE resident caps through the calculation of a pro rata” is corrected to read “partially offsets the reduction to Hospital D's and E's FTE resident caps through the application of a pro rata”;
(3) Line 22, the phrase “the actual cap reduction” is corrected to read “ the cap reduction”;
(4) Lines 33 through 44, the sentence “We note that the total final FTE resident cap effective July 1, 2005 is 410 FTEs ( the total under step 9), which, mathematically, is the same as subtracting 400 (the total FTEs trained in the group) from 440 (the aggregate “1996” FTE residents caps) multiplying by 75 percent, and subtracting the result from the original aggregate cap of 440 (that is, [440−(0.75 (440−400))] = 410).” is corrected to read “We note that the aggregate total final FTE resident cap for the hospitals in the commonly affiliated group, effective July 1, 2005, is 410 (the total under step 9), which, mathematically, is the same as subtracting 400 (the aggregate total FTE residents trained in the group) from 440 (the aggregate “1996” FTE resident caps), multiplying by 75 percent, and subtracting the result from the original aggregate FTE resident cap of 440 (440−(0.75(440−400))] = 410).”; and
(5) Lines 44 through 49 and second column, lines 1 through 11, delete the paragraph that begins “We also note that the reductions to”.
b. Second column, lines 12 through 49 and third column lines 1 through 12, the paragraph that begins with the phrase “We believe” and ends with the phrase “of the Act.” is corrected to read “We believe this final policy concerning the application of sections 1886(h)(7)(A)(i) and (iii) of the Act to hospitals that are affiliated ‘as of July 1, 2003' addresses the commenters' concerns in that it protects hospitals from any reduction in their FTE resident caps if the aggregate FTE resident counts for the commonly affiliated group equal or exceed the aggregate FTE resident caps, and, in some cases, can limit the reductions in FTE resident caps. We believe this final policy also addresses the commenters' concerns that hospitals in an affiliated group as of July 1, 2003, should be allowed to modify their affiliation agreements as late as June 30, 2004, in order to reflect the resident rotations that actually occurred among the affiliated hospitals, and that the policy should be applied using a contemporaneous comparison of FTE resident counts and affiliated caps. Under our final policy, we will use the hospitals' affiliated FTE resident caps as reported on the cost report, which allows for modifications to the July 1, 2003, affiliation agreement by June 30, 2004, and a comparison of contemporaneous FTE resident caps and counts. The commenters also requested that we provide an extra opportunity for hospitals that were affiliated “as of July 1, 2003” to modify their affiliation agreements after publication of the final rule, if the final policy is significantly different from the proposed policy. We do not believe it is appropriate to allow hospitals to modify their affiliation agreements after publication of the final rule. The only reason we allow hospitals to modify their agreements by June 30 of an academic year is to allow adjustment to the FTE counts of each hospital in the affiliation to reflect the realities of the cross-training that occurred within that academic year. Thus, the decision as to whether or not an affiliation agreement should be modified should be based solely on whether the FTE counts first reflected in the affiliation agreement on July 1 of a year differ from the actual FTEs that trained at each hospital during the year. We expect that if affiliated hospitals experienced changes in resident rotations during the academic year that were not reflected in their affiliation agreement, they would have modified their affiliation agreement by the conclusion of the academic year as is permitted under our current policy. We do not believe it is appropriate to allow an additional opportunity for hospitals to modify their affiliation agreements for other purposes.”.
c. Third column,
(1) Lines 15 through 17, the phrase “located in an other than large urban area is part of an affiliated group as of July 1, 2003 with a rural hospital that has” is corrected to read “located in an ‘other than large’ urban area is part of an affiliated group as of July 1, 2003, that includes a rural hospital that has”;
(2) Lines 18 through 26, the sentence “The commenter stated that while the rural hospital is exempt from reductions to its FTE resident caps, the urban hospital could be ‘penalized’ because of the slots acquired under the affiliation agreement with the rural hospital, if the urban hospital did not fill all of those slots in its reference cost reporting period.” is corrected to read “The commenter stated that, while the rural hospital is exempt from reductions to its FTE resident caps, the urban hospital could be ‘penalized’ if, in its reference cost reporting period, the urban hospital
(3) Line 18, the phrase “that CMS carve out” is corrected to read “that CMS ‘carve out.”’; and
(4) Line 34, the phrase “of unused residency slots” is corrected to read “of “unused” residency slots”.
(5) Lines 39 through 41, the phrase “we cannot exempt other hospitals outright from possible reductions to their FTE resident caps.” is corrected to read “section 1886(h)(7)(A) of the Act does not provide for exemptions from possible reductions to FTE resident caps.”;
(6) Line 44, the phrase “part of an affiliated group” is corrected to read “part of a commonly affiliated group”; and
(7) Line 50, the phrase “‘1996”’ FTE resident caps” is corrected to read “FTE resident caps”.
27. On page 49132,
a. First column
(1) Lines 3 through 11, the sentence “But if the aggregate FTE resident counts are below the aggregate “affiliated” FTE resident caps, then (except for rural hospitals with less than 250 beds), a hospital in the affiliated group that trained less FTE residents than its individual “affiliated” FTE resident cap would have its “1996” FTE resident cap reduced” is corrected to read “However, if the group's aggregate FTE resident count is below its aggregate FTE resident cap, then (except for rural hospitals with less than 250 beds), a hospital in the affiliated group that trained fewer FTE residents than its individual “affiliated” FTE resident cap would have its FTE resident cap reduced under section 1886(h)(7)(A)(i) of the Act.”;
(2) Lines 15 through 21, the phrase “the hospital(s) with which it was affiliated as of July 1, 2003, the aggregate FTE resident counts were below the aggregate ‘affiliated’ FTE resident caps and the urban hospital was also training fewer residents than its ‘affiliated’ cap.” is corrected to read “the hospital(s) that are part of its commonly affiliated group as of July 1, 2003, the aggregate FTE resident counts were below the aggregate FTE resident caps and the urban hospital was also training fewer residents than its ‘affiliated’ cap.”; and
(3) Lines 21 through 38, the two sentences “However, since the rural hospital's FTE resident caps are protected from reductions under section 1886(h)(7)(A)(i)(II) of the Act, the urban hospital could continue to affiliate with the rural hospital on and after July 1, 2005, and, to the extent that the rural hospital has FTE slots available to “lend” to the urban hospital, the urban hospital could receive a temporary increase to its FTE resident caps via the affiliation agreement with the rural hospital. Therefore, although this urban hospital may lose slots under section 1886(h)(7)(A)(i) of the Act, it may be able to receive additional slots temporarily by affiliating with the rural hospital.” are corrected to read “Since the rural hospital's FTE resident caps are protected from reductions under section 1886(h)(7)(A)(i)(II) of the Act, its FTE resident cap would not be reduced regardless of the comparison between its FTE resident counts and caps. Thus, the urban hospital could continue to affiliate with the rural hospital on and after July 1, 2005, and, to the extent that the rural hospital has FTE slots available within its FTE resident cap to “lend” to the urban hospital, the urban hospital could receive a temporary increase to its FTE resident caps via an affiliation agreement with the rural hospital. Therefore, although this urban hospital's FTE resident cap may be subject to reduction under section 1886(h)(7)(A)(i) of the Act, the hospital may be able to receive a temporary adjustment to its FTE resident cap by affiliating with the rural hospital in subsequent academic years.”
(4) Lines 43 through 69 and the second column lines 1 through 30, the text beginning with the phrase “
“
“
28. On page 49139, first column, lines 15 and 16, the phrase “As we have stated in this final rule, each application by a hospital” is corrected to read “Each application by a hospital”.
29. On page 49148, first column, lines 36 and 37, the phrase “score of 4 (expanding geriatrics program, Medicare physician scarcity area, residents” is corrected to read “score of 5 (expanding geriatrics program, which is also a primary care program, Medicare physician scarcity area, residents”.
30. On page 49149, first column, line 12, the citation “§ 413.75(b)” is corrected to read “existing § 413.86(b)”.
31. On page 49158, second column,
a. Line 47, the phrase “a criterion” is corrected to read “a ‘bright line ‘ criterion”.
b. Line 56, at the end of the sentence add the following sentence “The commenter stated that contrary to the authority provided to CMS in section 422 of Pub. L. 108-173, the agency's proposal would result in the redistribution of these resident positions in ‘some wholesale manner’.”
32. On page 49159, second column, lines 55 through 61, the sentence “The Congress did, however, recognize the unique status of reductions in FTE resident counts attributable to a hospital's participation in a demonstration project or the VRRP in the statute at section 1886(h)(7)(B)(vi) of the Act.” is deleted.
33. On page 49165, last bulleted item, last line, the phrase “in its existing programs.” is corrected to read “ in its existing programs or the 2004 fill rate information of all of the programs at the hospital.”
34. On page 49168, fourth boxed paragraph C11, last line, the phrase “defined under 413.75(b)” is corrected to read “defined under existing § 413.86(b).”
35. On page 49172,
a. Second column, lines 26 through 38, the phrase “effective October 1, 2004, if a hospital can document that a particular resident matches simultaneously for a first year of training in a clinical base year, and for a second year of training in the specialty program in which the resident intends to seek board certification, the resident's initial residency period would be based on the specific specialty program for the subsequent year(s) of training in which the resident matches and not on the clinical base year program.” is corrected to read “effective for portions of cost reporting periods beginning on or after October 1, 2004, if a hospital can document that a particular resident
b. Third column, line 44, the phrase “we are able to” is corrected to read “under current policy, we have been able to”.
c. Third column, line 65, “effective October 1, 2004” is corrected to read, “effective for portions of cost reporting periods beginning on or after October 1, 2004.”
36. On page 49178, third column, lines 48 and 49, the phrase “to financial intermediaries” is corrected to read “to fiscal intermediaries”.
37. On page 49180,
a. First column, line 3, the phrase “we are also proposing” is corrected to read “we also proposed”.
b. Third column, lines 18 and 19, the phrase “because we are proposing to” is corrected to read “because we proposed to”.
38. On page 49219,
a. Second column, line 62, the citation “§ 485.649” is corrected to read “§ 485.647”;
b. Third column, line 1, the phrase “to clarify that. Payment to the CAH for” is corrected to read “to clarify that payment to the CAH for”.
39. On page 49221, third column, line 53, the date “December 31, 2005” is corrected to read “September 30, 2006”.
40. On page 49222, first column, line 22, the phrase “§ 489.24(d) to § 489.24(d)” is corrected to read “§ 489.24(d) to § 489.24(e)”.
(1) Except as specified in paragraph (f) of this section, for cost reporting periods beginning on or after October 1, 1997—
1. Section 412.230(d)(3)(ii) is corrected by adding the following paragraph (d)(3)(ii)(B):
(B) With respect to redesignations for Federal fiscal years 2002 through 2005, the hospitals average hourly wage is, in the case of a hospital located in a rural area, at least 106 percent and in the case of a hospital located in an urban area, at least 108 percent of the average hourly wage of hospitals in the area in which the hospital is located.
(f)
(a) * * *
(10) Effective for cost reporting periods beginning on or after October 1, 2004, if a hospital can document that a resident simultaneously matched for one year of training in a particular specialty program, and for a subsequent year(s) of training in a different specialty program, the resident's initial residency period will be determined based on the period of board eligibility associated with the program for which the resident matched for the subsequent year(s) of training.
48. On page 49277,
a. First column,
(1) Lines 17 and 18, the phrase “hearings and investigations, significant charge increases by hospitals, charges” is corrected to read “hearings and investigations concerning significant charge increases by hospitals, charges”; and
(2) Second full paragraph, lines 61 through 65, the sentence, “This problem has now been resolved and along with the reasons stated above recommended that revert to a methodology using costs when calculating the annual outlier threshold.” is corrected to read “Because this problem has now been resolved, and for the reasons stated above, the commenter recommended that we revert to a methodology using costs when calculating the annual outlier threshold.”
b. Third column, line 69, the phrase “data in updating charges, themselves.” is corrected by removing the comma to read “data in updating charges themselves.”
49. On page 49278, third column,
a. Line 35 the figure “3.5” is corrected to read “3.6”; and
b. Line 36, the figure “1.6” is corrected to read “1.5”.
50. On page 49290, second column, line 22 the figure “$199.02” is corrected to read “$199.01”.
51. On pages 49612 through 49622, in Table 6A—New Diagnosis Codes the table is corrected by revising column 4 for listed entries to read as follows:
52. On page 49628, in Table 6C.—Invalid Diagnosis Codes, the table is corrected by adding the following footnote at the end of the table:
53. On page 49631, in Table 6E.—Revised Diagnosis Code Titles, fourth entry, the MDC (column 4) is revised to read as follows:
54. On page 49640, in Table 6E.—Revised Diagnosis Code Titles, the table is corrected by adding the two footnotes at the end of the table to read as follows:
55. On page 49641, in Table 6F.—Revised Procedure Code Titles, second and third entry, the MDC (column 4) is revised to read as follows:
56. On pages 49738 through 49754, Table 11.—FY 2005 LTC-DRGs, Relative Weights, Geometric Average Length Of Stay, and
We are correcting technical errors in the tables and addendum language of the FY 2005 final rule relating to the wage indexes, geographic reclassifications, IPPS payment rates. CMS and the fiscal intermediaries made errors in handling the data used to calculate certain average hourly wages, wage indexes, and capital geographic adjustment factors published in Tables 2, 3A
In addition, there were technical errors in hospital geographic reclassification data displayed in Tables 9A
We have corrected the errors in the wage tables and geographic reclassification tables. These corrected tables are posted and available on the CMS Web site at:
As a result of the revisions to the wage index tables, the FY 2005 hospital inpatient PPS operating and capital payment rates, published in Table 1A, 1B, 1C, and 1D also have been revised. The revised rates are posted and available on the CMS Web site at:
We ordinarily publish a notice of proposed rulemaking in the
The policies and payment methodology expressed in the FY 2005 final rule have previously been subjected to notice and comment procedures. This correction notice merely provides technical corrections to the FY 2005 final rule that was promulgated through notice and comment rulemaking, and does not make substantive changes to the policies or payment methodology that were expressed in the final rule. For example, this notice corrects typographical errors, inserts comments and responses that were inadvertently omitted from the final rule, makes clarifications to the preamble and regulations text, and revises inaccurate tabular data. Therefore, we find it unnecessary to undertake further notice and comment procedures with respect to this correction notice. We also believe it is in the public interest to waive notice and comment procedures and the 30-day delay in effective date for this notice. This correction notice is intended to ensure that the FY 2005 final rule accurately reflects the policies expressed in the final rule, and that the corrected information is made available to the public prior to October 1, 2004, the date on which the final rule becomes effective.
For the reasons stated above, we find that both notice and comment and the 30-day delay in effective date for this correction notice are unnecessary and impracticable, and that it is in the public interest to make this notice effective in conjunction with the final rule to which the corrections apply (and would be contrary to the public interest to do otherwise). Therefore, we find there is good cause to waive notice and comment procedures and the 30-day delay in effective date for this correction notice.
(1) In order to implement aspects of the 2004 Agreement with the Government of Israel, concerning certain aspects of trade in agricultural products, the HTS is modified as provided in the Annex to this proclamation.
(2) Any provisions of previous proclamations and Executive Orders that are inconsistent with the actions taken in this proclamation are superseded to the extent of such inconsistency.
(3) The modifications to the HTS made by the Annex to this proclamation shall be effective with respect to goods that are the product of Israel and are entered, or withdrawn from warehouse for consumption, on or after January 1, 2004, and the tariff treatment set forth therein shall be effective as provided in such Annex through December 31, 2008.